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2. This question of limitation is divisible in two parts (1) whether an application under Section 144, Civil Procedure Code, is covered" by Article 181 or Article 182 of the Indian Limitation Act, and (2) if Article 181 applies, then whether limitation starts from the date of the decree of the District Judge who varied the decree of the trial Court or from the date on which the second appeal was dismissed by the High Court.

3. In the present case the pre-emptors' case is that an application under Section 144, Civil Procedure Code, is an application for execution and is governed by Article 182 of the Limitation Act. It is common ground between the parties that if Article 182 is not applicable, then the residuary Article 181 applies to such an application.

This right is inherent in Courts of law and it is this light that has been given statutory recognition by Section 144 of the Code of Civil Procedure. The right of restitution by Section 144, Civil Procedure Code, is only one species of the same genus. That is one aspect of the right to get restitution. Ordinarily a right to restitution is to be enforced by a suit. In the Civil Procedure Code of 1859 there was no provision corresponding to the present Section 144. The question regarding right of restitution arising out of reversal of the trial Court's judgment was discussed by the Privy Council in Shama Purshad Roy v. Hurro Purshad Roy 10 Moo Ind App 203 (PC) (A), and it was observed:

"If it (the decree) has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable either by summary process, or by a new suit or action."

The legislature has chosen to adopt the first alternative mentioned by their Lordships of the Privy Council, and Section 144, Civil Procedure Code, lays down that this right must be enforced by means of an application to the Court of First instance and not by a suit. It is, therefore, clear that the right to enforce a judgment by the process of execution is essentially different from the right to restitution under Section 144, Civil Procedure Code. If a decree of reversal is sought to be executed, then the successful party will get nothing, as according to its terms and tenor there is no mandate or direction to restore any property taken from him in execution of the trial Court's decree. The basic principles on which these two rights are based are different.

It is also true that this right is to be enforced by an application and not by a suit, but it does not follow, with great respect to that eminent Judge, that an application to enforce this right must necessarily be held to be an application for execution. Proceedings for restitution no doubt arise out of a judgment of reversal, but proceedings under Section 144 are independent proceedings raising new issues of fact which did not arise in the original suit. In the present case this right to claim restitution is not the right derived from any express mandate or direction incorporated in the appellate Court's decree of reversal but from the right given by Section 144, Civil Procedure Code. It follows, therefore, that the nature of an application under Section 144, Civil Procedure Code, must be determined by looking at that section and other provisions of that Code.