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PETITIONER: P.K. KUTTY ANUJA RAJA & ANR.

       Vs.

RESPONDENT: STATE OF KERALA & ANR.

DATE OF JUDGMENT:       01/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 SCC  (2) 496        JT 1996 (2)   167  1996 SCALE  (2)14

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This  appeal   by  special   leave  arises   from   the judgment and decree of the High Court dated January 4, 1977 made  in A.S.  No.74 of 1976. The Division Bench of the High Court of Kerala had held that the limitation to lay the suit started  to the  appellants on January 1, 1968 when the igh Court  had earlier  delivered the  judgment quashing the assessment of  agricultural income  tax upon  the estate  of Raja Mananikraman  and his  estate is  liable  only  to  the extent of  1/693 share  of that estate. The facts are not in dispute. The  agricultural Income  Tax Officer  has made  an assessment of  the agricultural  income tax  to the  tune of Rs.84,788.78 for  the period between 1.11.1956 to 31.3.1958. It is  not necessary  to dilate all the facts but suffice to state that  for recovery  thereof when  demand was made, the succeeding Raja  made  payment  in  part  discharging  their liability. On October 12, 1960 a sum of Rs.18069.75 was paid and another  successor on  December 23,  1960 paid  a sum of Rs.21,000/-.  As   stated  earlier,   ultimately   in   O.P. No.2413/65 by  judgment and order dated January 1, 1968, the High Court  set aside  the assessment  and the  liability to recover the  tax was  confined only  to the  extent of 1/693 share of the estate Raja Manavikraman.      The Civil  Suit for recovery of the amounts paid by the successors was  filed in 1974. The Suit (O.S. No.197/74) was decreed by the trial court in 1976. But on appeal, as stated earlier, the  Division Bench  held that  it  was  barred  by limitation. Thus this appeal by special leave.      Shri A.S. Nambiar, the learned senior counsel appearing for  the   appellants  contended  that  the  appellants  had discovered the  mistake on  October 5,  1971 when this Court dismissed the  appeal filed  by the State against the orders passed  ln   O.P.2413  of  1965  and  that,  therefore,  the limitation begins to run from that date. Therefore, the suit was filed  within three  years and such was not beyond time.

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The High Court was wrong in holding that the suit was barred by limitation.  We are  unable to  agree  with  the  learned counsel. It  is not  in  dispute  that  at  his  behest  the assessment was  quashed by  the High  Court in the aforesaid O.P. on  January 1,  1968. Thereby  the  limitation  started running from that date. Once the limitation starts running, it runs its full course until the running of the, limitation is intradicted by an order of the Court. Section  3   of  the   Limitation  Act   gives  a  power  of entertaining the suit which says that,      "Subject to  the provisions contained in      Section 4  to 24 (inclusive), every suit      prescribed  period  shall  be  dismissed      although limitation  has not been set up      as a defence."       Therefore,  if any  period  of  limitation  is  to  be excluded  from   the  prescribed   period   of   limitation, the  party   necessarily  has   to  satisfy   any   of   the appropriate  provisions   in  Section   4  to   24  of   the Limitation Act,  1963.  This  is  not  one  of  such  cases. Under those  circumstances, the  limitation having  begun to run from January 1, 1968, it stood expired by efflux of time after three  years. Therefore,  from January  2,  1971,  the right to recover stood barred by limitation. The pendency of the  appeal,   unless  the  operation  of  the  judgment  is suspended by  this Court,  does not  amount to   suspend the operation of  running of  the limitation. We do not find any such plea  raised by  the appellants  in this  case in  that behalf. Therefore,  the High  Court was right in its finding that the suit was barred by limitation.      It  is   contended  that   in  The  Sales  Tax  Officer & ors.  vs. Kanhaiya  Lal  Makund  Lal  Saraf  &  Ors,  [AIR 1959  SC   135  at   142],  that   when  the  knowledge  was acquired  by  the  party  for  the  first  time  before  the judgment  was   rendered   by   this   Court   in   previous litigation, the  claim  for  refund  would  start  from  the judgment rendered  by  this  Court.  We  do  not  have  that fact situation  in this  case. The  appellants  is  a  party to  the  proceedings  and  at  his  instance,the  assessment of agricultural  income  tax  was  quashed  as  referred  to hereinbefore and  having  had  the  assessment  quashed  the cause of  action had  arisen to  him to  lay  the  suit  for refund unless  it is refunded by the State. The knowledge of the mistake  of law cannot be countenanced for extended time till the  appeal was  disposed of unless, as stated earlier, the operation  of the  judgment of  the High  Court  in  the previous proceedings  were stayed  by this  Court. The suit, therefore, is barred by limitation.      The appeal is accordingly dismissed. No costs.