V. Ratnam, J.
1. This Civil Revision Petition is at the instance of the Kumbakonam Municipal Council questioning the correctness of the order of the Court below dismissing an application filed by it under Order 34, Rule 5, Code of Civil Procedure, on the ground that the petition is barred by time. The petitioner instituted O.S. No. 446 of 1973, District Munsif's Court, Kumbakonam, for the recovery of arrears of property tax. According to the petitioner, a house in Pothamarai South Street, Kumbakonam town, belongs to the respondent and has also been assessed in her name. For the two half years 1971-72 and two half years 1972-73, the tax had remained unpaid in a sum of Rs. 2,345.20 p. and in spite of demands made by the petitioner, the respondent did not pay the same. Claiming that the house tax is a charge over the property under Section 85 of the Tamil Nadu District Municipalities Act and, therefore, the petitioner is entitled to collect the amount personally and also on a charge over the property in question, the petitioner laid the suit in O.S. No. 446 of 1973, District Munsif's Court, Kumbakonam, and prayed for a decree directing the respondent herein to pay the amount periodically and also for a charge preliminary decree over the property and for other incidental reliefs.
2. The respondent contended that the house had been leased to one Viswanathan Chettiar and as a result of an arrangement between her and the lessee, the property tax was liable to be paid by the lessee and such an arrangement had been earlier recognised and, therefore, the petitioner should have collected the property tax only from Viswanathan Chettiar and his heirs and not from the respondent.
3. The learned District Munsif, Kumbakonam, who tried the suit held that the petitioner is entitled to a preliminary decree for Rs. 2, 458. 65 p. with a charge over the suit property and costs. Three months' time was granted for payment of the decree amount passed in the suit. The clauses which would be relevant for a consideration of the controversy between the parties in the present revision, are, as under:
It is hereby declared that the amount due to the plaintiff on the charge mentioned in the plaint calculated upto 5th May, 1973 is Rs. 2,458.65, for the principal and Rs. 420.50 p. for costs of the suit awarded to the plaintiff making in all the sum of Rs. 2,879.15 p.
(i) It is further ordered and decreed as follows:
That the defendant do pay into Court on or before 22nd September, 1974 or any later date upto which time for payment may be extended by the Court the said sum of Rs. 2,879.15 p. with interest on Rs. 2,458. 65 p. at 6% per annum from 5th May, 1973 till date of realisation.(ii) That on such payment and payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 11 of Order 34 of the I Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court, all documents in his possession or power relating to the charge of the suit property in the plaint mentioned and all such documents shall be delivered over to the defendant or to such persons as he appoints and the plaintiff if so required, re-convey or re-transfer the said property free from the charge and clear from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.
(iii) And it is hereby further ordered and decreed that in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the charged property and on such application being made the charged property or a sufficient part thereof shall be directed to be sold and for purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession or power relating to the charged property.
(iv) And it is further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied after deduction therefrom of the expenses of the sale in payment of the amount payable to the plaintiff under this decree and under any further orders that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest and that balances if any shall be paid to the defendant and other persons entitled to receive the same.
Then follows the description of the property dealt with under the decree. From the foregoing clauses, it is obvious that the decree, though purporting to create a charge over the property in respect of municipal taxes due to the petitioner, has been drawn in the form of preliminary decree for sale in Form No. 5-A of Appendix-D to the Code of Civil Procedure. Since the respondent did not pay the amount as per the decree referred to above, the petitioner filed an application purporting to be under Order 34, Rule 5, Code of Civil Procedure, praying for the passing of a final decree pursuant to the, preliminary decree passed on 22th June, 1974. This petition had been filed into Court on 5th April, 1978. The petition had been returned by the office requiring the petitioner to state how the petition is in time. On 24th April, 1978, the counsel for the petitioner made an endorsement that though the application for final decree had been made after three years from the date of the preliminary decree, yet in view of the decision reported in Sivan Pillai v. Anbayyan and Ors. : (1976)1MLJ385 , the petition is not barred by limitation and had requested that the matter might be posted before Court. Thereafter, the matter was posted before Court and the learned District Munsif did not accept the stand of the petitioner that the application for final decree is not barred and consequently, rejected the unfiled petition. It is the correctness of this order that is questioned in this Civil Revision Petition.
4. The learned Counsel for the petitioner contends relying upon the language of Order 34, rules 2, 3,7 and 8 Code of Civil Procedure that in cases failing under those rules, an application by the plaintiff is contemplated whereas, under Rule 4 the words, 'the plaintiff shall be entitled to apply' alone are found and, therefore, no application even for the passing of a final decree is contemplated and, therefore, no question of limitation for filing such an application would arise at all. Support for this is sought to be drawn from the analogy of an enquiry into mesne profits under Order 20, Rule 12(3), Code of Civil Procedure, by Court which does not contemplate even an application as stated by the Full Bench in Ramasubramanya Pattar v. Karimbil Pati : AIR1940Mad124 . On the other hand, the learned Counsel for the respondent contends that the preliminary decree in Form No. 5-A in the instant case had been passed under Order 34, Rule 4, Code of Civil Procedure, and time for payment of the amount had also been granted and an application for the final decree consequent to the nonpayment within time granted by the Court would fall under Order 34, Rule 5(a), Code of Civil Procedure, which again contemplates an application by the plaintiff and, therefore, an application is necessary and such an application should also be made within three years from the date when the amount becomes payable as provided for under Article 137 of the Limitation Act. The decree, as seen already, is a preliminary decree for sale under Order 34, Rule 4, Code of Civil Procedure, and time for payment till 22nd September, 1974 had been granted to the respondent. It is not disputed that the amount was not paid within the time granted by Court and there was no extension of time also. In accordance with Clause (iii) of the decree, the petitioner secured a right to apply for a final decree for the sale of the charged properties on the failure of the respondent to pay the amount on or before 22nd September, 1974. In other words, the right to apply for a final decree in accordance with Clause (Hi) of the preliminary decree accrued to the petitioner on the failure of the respondent to pay the amount on or before 22nd September, 1974. The circumstance that a charge had been prayed for in the suit cannot make any difference to the applicability of the principle, especially in view of the form of the decree that has been granted in favour of the petitioner in this case. Where a person who has obtained a preliminary decree for sale finds that the amount has not been paid within the time granted by the decree, in order to sell the properties and realise the amount due, necessarily he has to obtain a final decree and the right to apply for such a final decree arises on the failure of the defendant to pay the amount within the time granted. It has been consistently laid down that to such an application, Article 181 of the Limitation Act, 1908, corresponding to Article 137 of the Limitation Act XXXVI of 1963, providing for a period of three years to make the application when the right to apply accrues, would apply. (Vide Subbalakshmi Ammal v. Ramanujam Chetty (1919)ILR42 Mad 52 : 35 M.L.J. 552 8 L.W. 526; Atummadi Venkatiah v. Boganatham Venkata Subbiah : AIR1922Mad65 , and Rajamayyer alias Subramania Iyer v. Venkatasubba Iyer : AIR1945Mad468 .
5. In order to get over the applicability of Article 137 of the Limitation Act, the learned Counsel for the petitioner would rely upon the decision of the Full Bench of this Court in Ramasubramanya Pattar v. Karimbil Pati I.L.R. : AIR1940Mad124 . In that case, a decree for possession of one of the items of the properties had been obtained by the respondents in respect of which a direction was also given that the trial Court should hold an inquiry as to past and future mesne profits and to pass a decree accordingly. That order was dated 6th November, 1930, and on 30th March, 1934 the respondent applied to the trial Court to ascertain the mesne profits from 31st October, 1925, when the appellant became possessed of the property till 23rd May, 1932, when he surrendered possession of the property to the respondents. An enquiry was held and a certain amount was found due to the respondents which the appellant was directed to pay. An appeal was filed against that and a contention was raised that the application was barred under Article 181 of the Limitation Act inasmuch as more than three years had elapsed between the date of the District Court's decree (6th November, 1930) and the date of the filing of the application (30th March, 1934) and that contention was negatived. On further second appeal, the Full Bench held that the fact that the decree holder thought it advisable to move the Court to commence the inquiry does not mean that he is making an application within the purview of Article 181 and whenever the decree-holder moves the Court, the Court is bound by the rule to inquire and grant the decree-holder final decree and under those circumstances, the application is merely in the nature of a reminder of what is still to be done. This was decided with reference to the addition of Sub-rule (3) to Rule 12 of Order 20, Code of Civil Procedure, which stated that where an appellate Court directs such an inquiry, it may direct the Court of the first instance to make the inquiry and in every case the Court of first instance may of its own accord and shall, whenever moved to do so by the decree-holder inquire and pass the final decree. It is obvious from the above rule that principally it is the duty of the Court of the first instance to make that inquiry of its own accord and that the Court may also be reminded about the inquiry it has to conduct by means of an application made by the decree-holder. The contemplation of the application of Article 181 of the Limitation Act to such applications as pointed out by the Full Bench must have been farthest away from the intention of the rule-making authority because that would be contrary to the provisions of Sub-rule (2) of Order 20, Rule 12, Code of Civil Procedure, and it would have had the effect of placing a litigant successful in the appellate Court in a worse position than a successful party in the Court of first instance. The intention of the addition of the sub-clause, the Full Bench pointed out, must be to obviate the necessity of the decree-holder having to move the appellate Court to pass a final decree after an inquiry into mesne profits made by the Court of first instance at the direction of the appellate Court. It was on these considerations that the the Full Bench held that Article 181 of the Limitation Act does not apply to an application falling under Sub-clause (3) of Order 20, Rule 12, Code of Civil Procedure. But in the present case, as seen already, the decree contemplates the making of an application by the petitioner if the amount is not paid on or before the date mentioned in the decree and, therefore, the petitioner cannot say that it is unnecessary on its part to file an application and that the Court must of its own accord grant a final decree and that it would suffice if the petitioner merely brings it to the notice of the Court. The principles laid down in the Full Bench decision, therefore, cannot be pressed into service by the petitioner herein with reference to the decree as it stands in the present case. Considerable reliance was also placed by the learned Counsel for the petitioner on the decision in K.S. Doraiswami Nadar (died) and Ors. v. Vinayaka Ratnaswami Nadar and Ors. : (1969)1MLJ392 . In that case, a preliminary decree for partition was passed on 26th November, 1954 by compromise and the application for passing a final decree was made on 30th July, 1960 and 8th December, 1960. The learned Subordinate Judge took the view that the application was barred by time and in the process of dismissing it, dismissed the suit as well. On appeal, the Bench pointed out that an application for passing a final decree in a partition suit is not one in execution, but in a pending suit and as such any number of applications for passing final decree in parts are permissible and that neither Article 136 nor Article 137 of the Limitation Act, 1963, nor the corresponding Articles in the repealed enactment would apply to applications for passing final decree. In this view, the dismissal of the application as well as the suit were set aside. This case also, in my view, does not assist the petitioner. A preliminary decree for partition merely defines the shares of the parties in the properties and the division by metes and bounds and allotment of properties has to be done only under the final decree for which an application has to be filed. But till the final decree is passed, the suit itself is pending and any such application can be construed to be an application in a pending suit] for which there is no time limit prescribed. But in the present case, Clause (iii) of the decree referred to earlier provides for the filing of an application for the passing of a final decree. Under the preliminary decree in the present case, the amount has been declared and the time within which that amount has to be paid has also been fixed and the consequence of non-payment within that time have also been indicated, in that it would be open to the petitioner to take out an application for final decree and bring, the property to sale for the realisation of the amount due to it. Thus, the preliminary decree in the present case has not left any matter untouched or pending in the sense that a partition suit keeps alive most of the matters even after the preliminary decree, The only thing that remained under the decree in the present case was to file an application for a final decree and proceed there after with the sale of the property and, there-fore, such an application cannot be characterised as strictly an application in a pending suit belonging to the category of a partition suit as was the case in K.S. Doraiswami Nadar (died) and Ors. v. Vinayaka Ratnaswami Nadar and Ors. : (1969)1MLJ392 . Even this decision, therefore, does not in any way assist the petitioner. The learned Counsel for the petitioner placed very strong reliance upon the decision in Sivan Pillai v. Anbayyan and Ors. : (1976)1MLJ385 . In that case, the proceedings arose out of a suit to enforce a mortgage and a preliminary decree was passed on 30th January, 1958. Thereafter, the appellant filed an application in I.A. No. 126 of 1969 purporting to be under Order 34, Rule 5, Code of Civil Procedure, for passing a final decree. An objection was raised by the respondent that since the preliminary decree had been passed on 30th January, 1958 and no application had been filed within three years from the date of the preliminary decree, the application for final decree filed in 1969 was barred by limitation. The Courts below accepted this contention and dismissed the application. Ismail, J. (as he then was), held that the application for the passing of the final decree was not barred. In that case, the preliminary decree itself was not passed in accordance with the provisions contained in Order 34, Code of Civil Procedure, in that no time limit was fixed for the payment of the amount. Under those circumstances, the learned Judge held that the consequences of an omission by the Court to do its duty cannot be visited on a litigant and, therefore, the petition would be within time. That is not the situation in the present case. It is not the case of the petitioner that the preliminary decree passed in the present case was not in accordance with the provisions of Order 34, Code of Civil Procedure. Indeed, the decree accords completely with the requirements of Order 34, Code of Civil Procedure, and provides for the payment of the amount by the respondent herein within a prescribed time and also as to what further remedies would be available to the petitioner in the event of default. Consequently, the considerations which weighed with Ismail, J. (as he then was), in that case to hold that the application was in time cannot apply in the present case. If the preliminary decree in the present case contemplated the filing of an application by the petitioner in default of payment by the respondent within the time prescribed, then the right to apply for the final decree accrued on the date when the payment was not made as provided for under the decree, and as stated earlier, old Article 181 corresponding to Article 137 of the Limitation Act, 1963, would be applicable and an application has to be filed within three years from the date when the right to apply for a final decree accrued in favour of the petitioner, that is, on the non-payment by the respondent of the amount decreed on or before 22nd September, 1974. In this view, the application sought, to be filed in the present case on 5th April, 1978 is clearly out of time and the rejection thereof by the Court below was quite correct. For the aforesaid reasons, the Civil Revision Petition fails and dismissed. No. costs.
6. It is really distressing to note that a public body like the Municipal Council should have allowed its legitimate claims for recovery of property tax against house-owners to become barred by limitation. It is expected that with the machinery available at its disposal, the petitioner at least hereafter will be vigilant in the matter of not only collection, but also in the matter of timely institution of proceedings for the effective realisation of the property tax due to it.