THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL No. 1061 OF 2011 DT.16.9.2011 Between: Thota Mahalakshmi and ors … Petitioners And Kadiyama Malleswaramma and others … Respondents Counsel for the Petitioner: Sri R Prasad Counsel for respondent no. The Court made the following ORDER: THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL No. 1061 OF 2011 ORDER: This Second Appeal is filed questioning the judgment and decree dated 6.6.2011 in A.S. No. 21 of 2010 passed by the learned Senior Civil Judge, Mangalagiri, Guntur dismissing the appeal and confirming the order and judgment dated 9.7.2010 in E.A. No. 266 of 2004 in O.S No. 59 of 1986 passed by the Principal Junior Civil Judge, Mangalagiri, Guntur district. The appellants herein are legal heirs of Thota Venkaiah, who filed O.S. No. 59 of 1986 on the file of the Principal Junior Civil Judge, Mangalagiri for declaration of title and possession of the plaint schedule property. It appears that defendants therein remained ex-parte and pursuant to the ex-parte decree the plaintiff/Thota Venkaiah filed E.P. No. 107 of 1986 for delivery of the suit schedule property and stated to have taken possession of the property on 17.10.1986 through Court Amin. Thereafter, the defendants filed a petition to set aside the exparte decree and the suit was contested and ultimately the suit was dismissed by order dated 30.12.1995 . Aggrieved by the said order, Thota Venkaiah, filed an appeal in A.S. No. 23 of 1996 on the file of the VII Additional District Judge, Guntur and the same was dismissed by judgment and decree dated 10.2.2003. Thereafter the first defendant/Kadiyam Mukkanti filed an application in E.A.No. 266 of 2004 seeking restitution of possession of the suit schedule property. Pending said application, the plaintiff/Thota Venkaiah died and the appellants herein, being his legal heirs came on record. The learned Principal Junior Civil Judge, Mangalagiri, Guntur by order dated 9.7.2010 allowed E.A. No. 266 of 2004 with costs, ordering restitution of petition schedule property by putting the petitioners therein in possession and enjoyment of the schedule property by removing the respondents/appellants herein who are in possession, forthwith. Questioning the said order, the appellants herein filed an appeal in A.S. No. 21 of 2010 on the file of the Senior Civil Judge, Mangalagiri, Guntur district and the same was dismissed by judgment dated 6.6.2011 confirming the order dated 9.7.2010 passed in E.A. No. 266 of 2004 by the Principal Junior Civil Judge, Mangalagiri. Hence, the present Second Appeal is filed contending that both the Courts below erred in applying Article 137 of Limitation Act but in fact Article 136 of Limitation Act, applies and since no application was pending within 12 years from the date of taking possession, therefore the restitution application filed under Section 144 of CPC is barred by limitation. The above said contention of the appellants cannot be accepted, inasmuch as, admittedly, appellants herein took possession pursuant to ex- parte decree passed in O.S. No.59 of 1986, which was set aside later and the suit itself was considered on merits and the same was dismissed by order dated 30.12.1995, and on further appeal, it was confirmed by judgment dated 10.2.2003 in A.S. No.23 of 1996 passed by the VII Additional District Judge, Guntur. Therefore, this Court is of the considered opinion that appeal being an continuation of the suit, it shall be presumed that the suit is ultimately dismissed on 10.2.2003 i.e., the date on which A.S. No. 23 of 1996 was dismissed, therefore, it cannot be said that the application filed by the respondents under Section 144 of CPC is not within the period of limitation, even if, the limitation is calculated in terms of Article 136 and 137 of the Limitation Act. For the foregoing reasons, I do not see any merits, much less a substantial question of law, for consideration by this Court. The appeal fails and the same is hereby dismissed. No costs. ______________ V.ESWARAIAH,J DT.16.9.2011 TVK THE HON'BLE MR JUSTICE V ESWARAIAH SECOND APPEAL No. 1061 OF 2011 DT.16.9.2011