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Gajanan Chintaman Deshpande and ors. Vs. Karnatak Glass Industries and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKarnataka High Court
Decided On
Case NumberFirst Appeal No. 115 of 1962
Judge
Reported inAIR1971Kant241; AIR1971Mys241; (1971)1MysLJ200
ActsLimitation Act, 1908 - Schedule - Article 181; Code of Civil Procedure (CPC) , 1908 - Order 35, Rule 5
AppellantGajanan Chintaman Deshpande and ors.
RespondentKarnatak Glass Industries and ors.
Respondent AdvocateW.K. Joshi, Adv.
DispositionAppeal dismissed
Excerpt:
.....it can be said that the portuguese family law would be the court of domicile, within the state of goa. impugned order was quashed. - this position is well settled in view of the pronouncement of the privy council in .in that case, the privy council has laid down that where an appeal is preferred against a preliminary decree, the lime for applying for final decree runs from the date of the appellate decree. ' this observation clearly shows that this court was not at all concerned with the preliminary decree passed against defendant-1, but was only concerned with the dismissal of the plaintiff's suit against defendant-2. on a consideration of all aspects, this court came to the conclusion that the liability of a surety was co-extensive with that of the mortgagor, viz......to pay the decretal amount failing which the plaintiff was entitled to make an application for a final decree under order 34, rule 5 c. p. code, the suit against defendant 2 was dismissed.the plaintiff preferred an appeal to the high court of bombay challenging the dismissal of his suit against defendant 2.defendant 1 was not impleaded as a party in the said appeal. consequent upon the reorganisation of states, the said appeal was transferred to the high court of mysore where it was renumbered as appeal no. r. a. (b) 191/1956. this court allowed the plaintiff's appeal and made a decree against defendant-2 on 25-11-1960. this court came to the conclusion that the liability of defendant-2 as surety was co-extensive with that of defendant-1.the plaintiff thereafter filed an application,.....
Judgment:

Malimath, J.

1. This is a plaintiffs regular first appeal against the decree passed by the Civil Judge, Senior Division, Belgaum, in Special Suit No. 67 of 1953. The respondents are the original defendants 1 and 2. Defendant-1 executed two mortgage deeds in favour of the plaintiff on 24-12-1946 and 26-7-1947 mortgaging its properties and borrowed certain amounts from the plaintiff. Defendant-2 who had no interest in the mortgage properties gave a personal guarantee and became a surety for the discharge of the mortgage debt of defendant-1. The plaintiff brought the suit against both the defendants. The learned Civil Judge, Senior Division, Belgaum, made a preliminary decree on 20-11-1954 under O. 84, Rule 4 of the Code of Civil Procedure. The preliminary decree gave six months time to pay the decretal amount failing which the plaintiff was entitled to make an application for a final decree under Order 34, Rule 5 C. P. Code, The suit against defendant 2 was dismissed.

The plaintiff preferred an appeal to the High Court of Bombay challenging the dismissal of his suit against defendant 2.Defendant 1 was not impleaded as a party in the said appeal. Consequent upon the Reorganisation of States, the said appeal was transferred to the High Court of Mysore where it was renumbered as Appeal No. R. A. (B) 191/1956. This court allowed the plaintiff's appeal and made a decree against defendant-2 on 25-11-1960. This court came to the conclusion that the liability of defendant-2 as surety was co-extensive with that of defendant-1.

The plaintiff thereafter filed an application, Ex. 153, on 6-9-1961 in the Court of the Civil Judge, Senior Division, Belgaum, under Order 34, Rule 5 of the C. P. Code and prayed for a final decree for sale of the mortgage property to recover a sum of Rs. 2,53,865-15-0 with future interest. It was stated in the application that the right to apply for a final decree under Order 34, Rule 5, Civil Procedure Code accrued on the expiry of six months from the date of the decree passed by the High Court in R. A. (B) No. 191/1956 dated 25-11-1960. It was therefore asserted that as the said period of six months expired on 26-5-1961, the cause of action or the right to apply under Order 34, Rule 5 accrued on 26-3-1961.

The learned Civil Judge, Senior Division, Belgaum, by his order dated 13-4-1963 dismissed the plaintiffs application, Ex. 153, holding that the same was barred by time under Article 181 of the Limitation Act. The learned Judge took the view that the right to apply for a final decree under Order 34, Rule 5 accrued on the expiry of six months after the passing of the preliminary decree by the trial Court on 20-11-1954 and not after the expiry of six months from the date of the decree passed by the High Court in, R. A. (B) 191/1956 against defendant-2. It is the correctness of the decision of the trial Court that is challenged in this regular first Appeal. It is, however, necessary to mention that the appellant has confined his claim in this appeal only to a sum of Rs. 1,00,000/- and has paid the Court-fee on the said amount.

2. It is not disputed by the learned counsel for either party that the Article in the First Schedule of the Limitation Act, 1908, applicable to the present application under Order 34, Rule 5, Civ0 Procedure Code is Article 181 which reads as follows:

Description of application. Period of Limitation. Time from which periodbegins to run.

181.

Application for which no period of limitation is provided elsewhere in thisschedule or by section 48 of the Code of Civil Procedure, 1908.

Three years.

When the right to applyaccrues.

The question for consideration is as to whether the right of the plaintiff to apply for a final decree accrued on the expiry of six months allowed for payment by the decree of the trial Court dated 20-11-1954. Order 34, Rule 5, Civil Procedure Code pro-vides that where payment is not made as per the directions in the preliminary decree, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the

proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4. If no appeal was preferred, it is obvious that the application for a final decree under Order 34, Rule 5 could have been filed in this case within three years after the expiry of six months of the passing of the preliminary decree by the trial Court on 20-11-1954. In a case where an appeal is preferred against the preliminary decree, it is the decree that is ultimately passed by the Appellate Court that will be the preliminary decree in the case on the basis of which alone the plaintiff can make an application , for a final decree under Order 34, Rule 5, Where the Appellate Court affirms or modifies the decree, the preliminary decree passed by the trial court gets merged in the decree of the Appellate Court. Therefore, in a case where a preliminary decree passed by the trial Court is challenged in appeal, it if the decree passed by the appellate Court that becomes the preliminary decree and therefore the basis for making an application for final decree under Order 34, Rule 5. In such cases, it is clear that the right to apply accrues when the decree is passed by the Appellate Court. This position is well settled in view of the pronouncement of the Privy Council in . In that case, the Privy Council has laid down that where an appeal is preferred against a preliminary decree, the lime for applying for final decree runs from the date of the appellate decree. Their Lordships of the Privy Council referred with approval the view expressed by Justice Banerji and Justice Tudball in the Special Bench decision of the Allahabad High Court reported in ILR 39 All 641 = (AIR 1917 All 163) (SB), Gajadhar Singh v. Kishen Jiwan Lal. Their Lordships have approved the following passage in the judgment of justice Banerji:

'It seems to me that this rule regulating application for final decree in mortgage fictions contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition to the making of a final decree is the existence of preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate court which is the final decree in the case.'

Their Lordships of the Privy Council also approved the following passage in the Judgment of Justice Tudball:

'When the Munsiff passed the decree it was open to the plaintiff or the defendant to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate court of final jurisdiction. When that decree is passed, it is that decree and only that which can be made final in the cause between the parties.'

The principle that emerges from the judgment of the Privy Council is that if a preliminary decree passed by the trial court is challenged in appeal, it is the decree of the appellate court of final jurisdiction that has to be treated or considered as a preliminary decree in the case and not the decree of the trial Court. It also follows from the said decision of the Privy Council that if the preliminary decree passed by the trial Court is not challenge in appeal and is thereby allowed to become final and conclusive, the decree of the trial Court alone becomes the basis for making an application for passing a final decree under Order 34, Rule 5 C. P. Code. In view of the authoritative pronouncement of the Privy Council on the point, it is unnecessary for us to consider the decisions of other High Courts cited at the Bar.

3. The question for consideration in this case, therefore, is as to whether the preliminary decree passed by the trial Court in this case on 20-11-54 was challenged in the appeal preferred by the plaintiff. The plaintiff secured a preliminary decree under Order 34, Rule 4, against defendant-1 who alone had mortgaged the properties in favour of the plaintiff. The plaintiff had, therefore, no grievance whatsoever against the preliminary decree passed by the trial Court against defendant-1. Defendant-1 has not challenged the preliminary decree passed against him. Defendant-2 also did not file any appeal challenging the preliminary decree passed against defendant-1. The plaintiff also did not challenge the decree passed against defendant-1 under Order 34, Rule 4 C. P. Code. It is because the plaintiff was not challenging the preliminary decree against defendant-1 that he did not implead defendant-1 as a party to the appeal which he preferred against defendant-2. We have therefore no hesitation in arriving at a conclusion that the preliminary decree passed in favour of the plaintiff and against defendant-1 by the trial Court on 20-11-1954 was not challenged by any one in appeal. As the preliminary decree passed by the trial Court was not challenged in appeal, the preliminary decree passed by the trial Court became final and conclusive. It is the decree of the trial Court in this case therefore, that

could be the basis for applying for a final decree under Order 34, Rule 5 C. P. Code.

4. Sri G. D. Shirgurkar, the learned counsel for the appellant, however, contended that notwithstanding the fact that the plaintiff has not challenged the preliminary decree passed by the trial court against defendant-1, this court modified the preliminary decree passed by the trial court in Appeal No. R. A. (B) 191/1956 preferred by the plaintiff against defendant-2. As the preliminary decree passed by the trial court was modified by this court in appeal, it was urged that the right to apply for a final decree accrued only when the decree was passed by this court in R. A. (B) No. 191/1956. We have already held that there was no appeal filed by any one against the preliminary decree passed by the trial court and that the appeal, of the plaintiff was confined to the decree of the trial court so far as the plaintiff's suit was dismissed as against defendant-2. As the preliminary decree was not challenged before this court in appeal, the question of either affirming or modifying the same by this court, in appeal, aid not arise. The judgment and decree passed by this Court in R. A. (B) No. 191/56 do not at all indicate that this court chose either to affirm the preliminary decree or to modify the same, This is what this court has observed in paragraph 2 of the judgment in B. A. (B) No. 191 of 1956:--

'The trial court has decreed the plaintiff's suit as against the first defendant but dismissed the suit against the second defendant holding that the suit against him is premature. The correctness of this finding is in issue in this court.' This observation clearly shows that this court was not at all concerned with the preliminary decree passed against defendant-1, but was only concerned with the dismissal of the plaintiff's suit against defendant-2. On a consideration of all aspects, this court came to the conclusion that the liability of

a surety was co-extensive with that of the mortgagor, viz., defendant-1, in this case. The court, therefore, ultimately made a personal decree in favour of the plaintiff as against defendant-2. The relevant operative portion of the judgment in H. A. (B) 191/1956 reads as follows:

'In the result, this appeal is allowed and the suit is decreed against the respondent to the same extent to which it is decreed against the first defendant.' It is thus clear that this court neither affirmed the preliminary decree passed by the trial court against defendant-1 nor aid it modify the same. This court allowed the plaintiff's appeal and passed a decree in favour of the plaintiff and against defendant-2. As this Court came to the conclusion that the liability of defendant-2 was co-extensive with that of defendant-1, it observed that the decree against defendant-2 should be to the same extent as the one passed against the first defendant. It is difficult to understand the judgment and decree of this Court in R. A. (B) 191/1956 as having the effect of either affirming or modifying the decree passed by the trial Court. We have no hesitation in holding that the preliminary decree passed by the trial Court became final and conclusive as the same was not challenged in appeal by any one of the parties to the suit. As the preliminary decree passed by the trial Court became final and conclusive, the right to apply for a final decree accrued on the expiry of six months from 20-11-1954, i.e., the date on which the preliminary decree was passed by the trial Court. As the application, Ex. 153, for final decree was filed in this case on 6-9-1961. beyond the period of limitation of three years prescribed under Article 181 of the Limitation Act, 1908, we hold that the trial court was right in dismissing the application as being barred by limitation.

5. For the reasons stated above, this appeal fails arid the same is dismissed, In the circumstances, the parties shall bear their respective costs.


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