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Velaguru Asari Vs. Suppa Naicken and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtChennai
Decided On
Reported inAIR1944Mad209; (1943)2MLJ678
AppellantVelaguru Asari
RespondentSuppa Naicken and ors.
Cases Referred(P.C.) Batuk Nath v. Munni Dei and Sachindranath Roy
Excerpt:
- - the first defendant failed to comply with this condition and accordingly on the 29th january, 1937, his application stood dismissed with costs. the first defendant appealed without success......the first defendant (the father of the appellant) applied for an order setting aside the ex parte decree. this application was heard on the 19th january, 1937, when, with the consent of the plaintiffs' vakil, the court directed that the ex parte decree should be set aside, provided that the first defendant paid within ten days a total sum of rs. 182-3-0 as costs. the first defendant failed to comply with this condition and accordingly on the 29th january, 1937, his application stood dismissed with costs. the first defendant then filed an appeal in the court of the district judge against the conditional order passed by the district munsiff on the 19th january, 1937. he averred that the decree should have been set aside unconditionally. this appeal was heard on the 24th august,.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. The question in this second appeal is whether an application for a final decree in a mortgage suit is barred by the law of limitation. The case has been placed before a Bench as the facts are unusual and it was considered that there was no authority directly bearing on this case.

2. In O.S. No. 391 of 1935, on the file of the Court of the District Munsiff of Kulitalai, the first, second and third respondents sued to enforce the payment of a debt due on a mortgage which had been created by the grandfather of the appellant. At the time of the institution of the suit the mortgagor was dead, and his son and his two grandsons, of whom the appellant is one, were made defendants in his place. There were six other defendants. These persons were made parties as they had interests in the property by reason of subsequent mortgages. On the 30th September, 1936, the District Munsiff passed a preliminary mortgage decree, -in which he directed that two months' time should be allowed for redemption. The defendants did not appear and therefore a decree was passed ex parte. On the 20th October, the first defendant (the father of the appellant) applied for an order setting aside the ex parte decree. This application was heard on the 19th January, 1937, when, with the consent of the plaintiffs' vakil, the Court directed that the ex parte decree should be set aside, provided that the first defendant paid within ten days a total sum of Rs. 182-3-0 as costs. The first defendant failed to comply with this condition and accordingly on the 29th January, 1937, his application stood dismissed with costs. The first defendant then filed an appeal in the Court of the District Judge against the conditional order passed by the District Munsiff on the 19th January, 1937. He averred that the decree should have been set aside unconditionally. This appeal was heard on the 24th August, 1937, and allowed. The result was that the District Judge remanded the case to the District Munsiff to hear the application for an order setting aside the ex parte decree and decide it on the merits. In accordance with this order the District Munsiff posted the application for hearing on the 22nd September, but when the case was called on the first defendant was again absent. Consequently, the application was dismissed for default. The first defendant applied for its restoration, but this application was dismissed. The first defendant appealed without success. On the 3rd May, 1940 the plaintiffs applied for a final decree and they also applied for an order excusing the delay. Both these applications were dismissed on the 14th December, 1940. The plaintiffs then appealed against the order of the District Munsiff refusing them a final decree. This appeal was heard by the Subordinate Judge, who allowed it. The present appeal is from this decision. '

3. The article of the Limitation Act which applies here is article 181. This fixes the period of limitation at three years from the date when the right to apply accrues. If no application had been filed for an order setting aside the ex parte decree, the right to apply for a final decree would have accrued on the 30th Novem-bar, 1936. But an application was filed and dealt with in the order of the District.

4. Munsiff of the 19th January, 1937. This order operated to extend the time to the 29th January, 1937, and on that date the plaintiffs undoubtedly had the right to apply for a final decree.

5. The Subordinate Judge held that the application was in time because of the order of the 22nd September, 1937, and we cannot agree that time ran from that date. When the District Judge allowed the first defendant's appeal on the 24th August, 1937, the position reverted to that on the 20th October, 1936, when the first defendant applied for an order setting aside the ex parte decree. The dismissal on the 22nd September, 1937, of that application for default restored the position to what it was when the preliminary decree was passed, and what happened subsequently did not materially alter the position. At the most, the plaintiffs could only rely on the order of the 19th January, 1937, and this would merely mean that time began to run on the 29th January, 1937, which would not help them. The order of the 24th August, 1937, or that of the 22nd September, 1937, can in no sense be regarded as a merger of the preliminary decree.

6. The decisions of the Privy Council in Abdul Majid v. Jawahir Lal (1914) 27 M.L.J. 17 : I.L.R. 36 All. 350 (P.C.) Batuk Nath v. Munni Dei and Sachindranath Roy v. Maharaj Bahadur Singh seem to us to have application here. In the first of these cases the Privy Council dismissed an appeal for want of prosecution. The appeal arose out of a mortgage suit. After the appeal had been dismissed, the decree-holder applied under Section 89 of the Transfer of Property Act for an order making the decree for sale absolute and contended that the period of limitation ran from the date of the dismissal of the appeal by the Privy Council and not from the date of the High Court's decree. If the date of the dismissal of the appeal by the Privy Council was to be taken, the application was in time; otherwise it was time barred. The decree-holders'contention was that the High Court's decree had become merged in the order of the Privy Council. Their Lordships refused to accept this contention. In delivering the judgment, Lord Moulton said that the order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and therefore he was in the same position as if he had not appealed at all. The other decisi&ns; are also to the same effect. As we have already said, neither the order of the District Judge of the 24th August, J937, in the appeal filed by the first defendant, nor the order passed by the District Munsiff on the 22nd September, 1937, dismissing the first defendant's application for an order setting aside the ex parte decree, can in any sense be regarded as a merger of the order granting the preliminary decree.

7. Mr. T.V. Ramanatha Ayyar on behalf of the plaintiffs has referred the Court to decisions under articles 180 and 182. Those cases have no application here. Article 181 has nothing in Gammon with these articles. Under article 181, limitation runs from the date when the right to apply accrues, and, at the latest, it accrued on the 29th January, 1937.

8. The appeal must be allowed with costs here and below to be paid by plaintiffs-respondents.


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