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Musammat Gaura Vs. Ahmad Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All235
AppellantMusammat Gaura
RespondentAhmad Khan and ors.
Excerpt:
act no. ix of 1908 (indian limitation act), schedule i, article 181 - mortgage--suit for sale--application for final decree--limitation. - - in the present case the six months expired on the 27th of february, 1909, and as the present application was made on the 10th of september, 1912, it was clearly beyond time. in this view the present application was clearly beyond time and ought to have been dismissed......richards, c.j. and pramada charan banerji, j.1. this appeal arises out of an application for a final decree in a mortgage suit. the preliminary decree was passed on the 27th of august, 1908, and six months were allowed to the defendant to pay the mortgage-money. it is stated in the petition filed by the decree-holder that no payment was made. he made an application on the 26th of august, 1911, for a final decree under order xxxiv rule 5. that application was dismissed for default on the 9bh of april, 1912. on the 10th of september, 1912, the present application was made for a final decree. it was opposed on two grounds, first, that the order dismissing' the previous application was a bar to the present application and, secondly, that the application was time-barred. the court of.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of an application for a final decree in a mortgage suit. The preliminary decree was passed on the 27th of August, 1908, and six months were allowed to the defendant to pay the mortgage-money. It is stated in the petition filed by the decree-holder that no payment was made. He made an application on the 26th of August, 1911, for a final decree under Order XXXIV Rule 5. That application was dismissed for default on the 9bh of April, 1912. On the 10th of September, 1912, the present application was made for a final decree. It was opposed on two grounds, first, that the order dismissing' the previous application was a bar to the present application and, secondly, that the application was time-barred. The court of first instance allowed the first objection and did not decide the second. It dismissed the application now made. Upon appeal the lower appellate court disagreed with the court of first instance and remanded the case for proceeding with the application.

2. So far as the first point is concerned the defendant's objection was without force, because, the first application having been dismissed for default of appearance of both parties, a fresh application could be made, but this second application ought to have been made within the period prescribed by the law of limitation. It is clear that the application was beyond time. The period of limitation which governs a case of this kind is three years, under article 181 of the first schedule to the Limitation Act, from the date on which the right to apply accrued, that is, from the expiration of the time allowed by the decree for payment of the mortgage money. In the present case the six months expired on the 27th of February, 1909, and as the present application was made on the 10th of September, 1912, it was clearly beyond time. The court below seems to have overlooked the fact that in the present Code of Civil Procedure a 'final decree' in a mortgage suit is a decree in the suit itself and an application for a final decree cannot be deemed to be an application in execution. The second application cannot be regarded as a revival of an application which was disposed of. In this view the present application was clearly beyond time and ought to have been dismissed.

3. We accordingly allow the appeal, set aside the order of the court below and restore the order of the court of first instance with costs in all courts.


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