Rai Charan Bhuiya And Ors. vs Debi Prosad Bhakut on 3 August, 1921
936 : 16 C.L.J. 83, which has been unfavourably oommented upon in later cases, such as Asutosh Goswami v. Upendra Prosad Mitra 38 Ind. Cas.
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1 - 9 of 9 (0.41 seconds)Atul Chandra Singha, Minor, By His ... vs Kunja Behari Singha on 22 August, 1917
3. The appellant contends that the rule applicable to eases of this character is contained in Article 181 of the First Schedule to the Indian Limitation Act, and that the application should have been made within three years from the date when the preliminary decree was reversed by the lower Appellate Court, that is, from the 29th November 1911, As explained in Asutosh Goswami v. Upendra Prasad Mitra 38 Ind. Cas. 17 : 24 C.L.J. 467 : 21 C.W.N. 564 it is not necessary, for us to deside whether any rule of limitation is applicable to eases of this character, because even if Article 181 applies, time ran against the respondent from the date when the final pronouncement was made in the proceedings instituted to teat the propriety of the preliminary decree. An application for restitution immediately on reversal of the preliminary decree by the first Appellate Court would have been futile; the appellant, who had preferred a second appeal, cannot very well maintain the position that the respondent should have pressed for restitution at a time when the appellant was seriously controverting the decision of the lower Appellate Court as to the correctness of the preliminary decree. If an application had been made at that stage, it would have been undoubtedly contended that no restitution should be allowed till the question of the correctness of the preliminary decree had been finally decided by the ultimate Court of Appeal where the appellant had lodged an appeal.
Province Of West Bengal vs Surja Kanta Jana on 15 May, 1953
20. Reference may also be made in this connection to the observations by a Division Bench of this Court in -- 'Ashutosh Goswami v. Upendra Prosad Mitra' AIR 1917 Cal 188 (2) (G). It was pointed out that in cases not comprehended strictly within the letter of Section 144, Civil P. C. which makes grant of restitution obligatory in certain circumstance, restitution is noc a matter of right, but depends upon the sound discretion of the Court, and will be ordered only when the justice of the case calls for it; the test, however, of what is just must be determined with reference to the imperative requirements of the law applicable to the subject matter. The Court cannot withhold relief by way of restitution when a sum has been paid out on the strength of an erroneous decision, even on a question of law or even of limitation. In that case also the question arose whether when restitution is to be made of the sum withdrawn, should it be with interest thereon, Relying on -- '(1871) LR 3 PC 465 (C)';
Isup Ali And Ors. vs Gour Chandra Deb on 7 August, 1922
It was ruled that the decree unappealed did not operate as a bar, so as to preclude the Appellate Court from dealing with the decree appealed against, because, it was said, the doctrine of res judicata has no application when the very object of the appeal, in substance, if not the question raised before us, as it merely lays down that where there are subordinate and dependent decrees, the reversal of the principal decree operates as a supersession of the subordinate decree; see Asutosh Goswamt v. Upendra Prosad Mitra 38 Ind. Cas.
Pathak Bhaunath Singh And Ors. vs Thakur Kedar Nath Singh And Ors. on 8 February, 1934
In A&utosh Goswami v. Upendra Prasad Mitra 38 Ind. Cas. 17 : 24 C.L.J. 476 : 21 C.W.N. 564 no discussion took place as it was held that no question of limitation arose, but there was a statement at the end of the judgment in which it was said that the only article applicable was Article 18J.
Pappu Reddiar vs P.Sv.Rm. Ramanatha Iyer on 25 June, 1962
255 : Ashutosh Goswami v. Upendra Prosad Mitra (1916) 24 Cal.
Unnamalai Ammal vs Mathan Alias Arunachalam And Anr. on 20 July, 1917
On the other hand, a decision of the Calcutta High Court reported in Ashutosh Goswami v. Upendra Prasad Mitra (1916) 21 C.W.N. 564 has been cited to us for the contrary position. In the first place, the observation there seems to be by way of obiter and further no reasons are given in support of the view that Article 182 did not apply.
Saraj Bhusan Ghosh And Ors. vs Debendra Nath Ghosh And Ors. on 20 May, 1931
There is the case of Ashutosh Goswami v. Upendra Prasad [19151] 38 I.C. 17.
Fazalar Rahman And Ors. vs Abdul Samad And Ors. on 19 August, 1925
1. This is an appeal against an order granting an application for restitution. The original decree was passed on the 12th June 1916. In execution of that decree certain money was realised by the appellants on the 17th February 1917. The decree was reversed on appeal on the 7th January 1920. There was a further appeal to this Court and the decree of the Appellate Court was affirmed on the 20th December 1921. This application for restitution was made on the 9th February 1923. On the authorities it is clear that the period of limitation is three years under Article 181 of the Limitation Act see Asutosh Goswami v. Upendra Prasad Mitra 38 Ind. Cas. 17 : 21 C.W.N. 564 : 24 C.L. 467. The point we have to decide is whether this period of limitation runs from the 7th January 1920 when the decree of the first Court was set aside or from the date of its confirmation on second appeal to this Court.
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