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Kaza Ramakotayya and ors. Vs. Nimmagadda Sitharamaswami, Minor by Mother and Guardian Mahalakshmamma and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai
Decided On
Reported inAIR1946Mad381; (1946)1MLJ192
AppellantKaza Ramakotayya and ors.
RespondentNimmagadda Sitharamaswami, Minor by Mother and Guardian Mahalakshmamma and ors.
Cases Referred and Govind Naick Gumnati Maik v. Basavannawa Parutappa I.L.R.
Excerpt:
- - the contention is well-founded and must be upheld. 822 of 1943, was clearly barred by limitation.patanjali sastri, j.1. this appeal arises out of proceedings for the passing of a final decree in a mortgage suit. the preliminary decree was passed on the 23rd december, 1937 and time for redemption was granted till the 23rd june, 1938. the application for final decree--i.a. no. 822 of 1943--was filed on 9th september, 1942, that is to say, more than three years after the time for redemption expired along with an application, i.a. no. 1193 of 1943, to excuse the delay in filing the former' application. it was alleged that some of the defendants were representing that they would settle and pay the amount due and that the next friend of the plaintiff being a woman devoid of worldly knowledge, believed their words and was under the impression that there would be no bar of limitation, as the.....
Judgment:

Patanjali Sastri, J.

1. This appeal arises out of proceedings for the passing of a final decree in a mortgage suit. The preliminary decree was passed on the 23rd December, 1937 and time for redemption was granted till the 23rd June, 1938. The application for final decree--I.A. No. 822 of 1943--was filed on 9th September, 1942, that is to say, more than three years after the time for redemption expired along with an application, I.A. No. 1193 of 1943, to excuse the delay in filing the former' application. It was alleged that some of the defendants were representing that they would settle and pay the amount due and that the next friend of the plaintiff being a woman devoid of worldly knowledge, believed their words and was under the impression that there would be no bar of limitation, as the decree was in the name of a minor. The learned Subordinate Judge accepting these grounds condoned the delay and overruling the objections raised in I.A. No. 822 of 1943, passed the final decree. The defendants 4, 6 and 8 have preferred this appeal.

2. The appellants contend that the Court below had no power to condone the delay in filing the application for final decree, pointing out that Section 5 of the Limitation Act is not applicable to such applications. The contention is well-founded and must be upheld. The section says:

Any appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable (by or under any enactment) for the time being in force, may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

3. Our attention has not been called to any enactment making this section applicable to applications for final decrees under Order 34, Rule 5 of the Code of Civil Procedure. Mr. Satyanarayana Rao for the respondent has sought to support the order of the lower Court by referring to Pulinchandra v. Muzaffer : AIR1933Cal508 and Govind Naick Gumnati Maik v. Basavannawa Parutappa I.L.R. 1941 Bom. 435. In the former case it was held that where the next friend of a minor plaintiff died after the preliminary decree was passed and new new next friend was appointed, the proceedings in the suit must be deemed to have remained in abeyance under Order 3a, Rule 10 of the Code of Civil Procedure until the appointment of a next friend in the place of the one who was dead and that, therefore, the right to apply for the final decree ' accrued ' to the plaintif on his attaining majority up till which time the suit was to be deemed as a pending proceeding. The Bombay case referred to also proceeded on similar facts, though the learned Judges rested their decision on a slightly different ground, viz., that right right to apply for a final decree was ' suspended ' during the period in which the suit was stayed, while expressing a doubt as to whether it was correct to hold that a fresh cause of action arose to the minor on attaining majority. However that may be, those decisions have no application to the facts here. The next friend could have filed the application for a final decree within the time limited by the law and she not having done so, her application, I.A. No. 822 of 1943, was clearly barred by limitation.

4. The appeal is accordingly allowed with costs here and in the Court below.


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