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Sm. Reba Sircar and ors. Vs. Bisweswar Lal Sharma Alias B.L. Sharma - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Decree No. 48 of 1976
Judge
Reported inAIR1980Cal328,84CWN552
ActsLimitation Act, 1963 - Section 15 - Schedule - Article 137
AppellantSm. Reba Sircar and ors.
RespondentBisweswar Lal Sharma Alias B.L. Sharma
Appellant AdvocateSaktinath Mukherjee and ;Suchit Kumar Banerjee, Advs.
Respondent AdvocateChandidas Roy Chowdhury and ;Rabindra Nath Dutta, Advs.
DispositionAppeal dismissed
Cases ReferredMulraj v. Murti Raghu
Excerpt:
- .....appeal is at the instance of the defendants in a suit lor mortgage and it is directed against the final decree passed in the suit. the only question that is involved in this appeal is whether the application of the plaintiff for a final decree was barred by limitation.2. the suit was decreed in a preliminary form on march 26, 1968. the decree inter alia, directed the defendants to pay the decretal amount within six months. being aggrieved by the preliminary decree, the defendants preferred an appeal against the same to this court being f. a. t. no. 1890 of 1968. in the said appeal, the defendants obtained an interim order staying all further proceedings in the suit pending the disposal of the appeal. on april 11, 1972 the said appeal against the preliminary decree was dismissed for.....
Judgment:

M.M. Dutt, J.

1. This appeal is at the instance of the defendants in a suit lor mortgage and it is directed against the final decree passed in the suit. The only question that is involved in this appeal is whether the application of the plaintiff for a final decree was barred by limitation.

2. The suit was decreed in a preliminary form on March 26, 1968. The decree inter alia, directed the defendants to pay the decretal amount within six months. Being aggrieved by the preliminary decree, the defendants preferred an appeal against the same to this Court being F. A. T. No. 1890 of 1968. In the said appeal, the defendants obtained an interim order staying all further proceedings in the suit pending the disposal of the appeal. On April 11, 1972 the said appeal against the preliminary decree was dismissed for default. The plaintiff made an application for final decree on April 11, 1975, that is, more than three years after the last date of payment fixed by the preliminary decree. The application was opposed by the defendants. It was contended by them that as the application was made three years after the date of payment of the decretal amount, it was barred by limitation.

3. The learned Subordinate Judge took the view that as the appeal was in continuation of the suit, the period of limitation should be computed from the date of the dismissal of the appeal for default on April 11, 1972. In that view of the matter, he overruled the contention of the defendants that the application was barred by limitation and passed the final decree as prayed for. Hence this appeal.

4. The residuary Article 137 of the Limitation Act, 1963 prescribes three years' limitation for an application from the date when the right to apply accrues. It is not disputed that Article 137 applies to an application for final decree for mortgage. We are, therefore, concerned with the question as to when the right to apply of the plaintiff for a final decree accrued. The learned Subordinate Judge, in our view, was not right in entertaining the view that as the appeal was a continuation of the suit, the period of limitation should be computed from the date of dismissal of the appeal for default. As the order dismissing the appeal for default was not a decree, there was no question of merger of the preliminary decree passed in the suit with any appellate decree.

5. It has, however, been stated already that this Court by its order stayed all further proceedings in the suit. It is now to be considered whether such stay of proceedings suspended the plaintiff's right to apply for a final decree, so that in computing the period of limitation the plaintiff could exclude the period during which the proceedings were stayed. It is not disputed that if the said period is excluded, the filing of the application was within time. An application for a final decree is not an application for execution and so the provision of Section 15 of the Limitation Act does not in terms apply enabling the exclusion of the period of stay of all further proceedings in the suit. The plaintiff, therefore, cannot avail himself of the provision of Section 15 as rightly contended by Mr Sakti-nath Mukherjee, learned Advocate appearing on behalf of the defendants appellants. Nor could the provision of Section 15 be extended by analogy or reference to proceedings to which it did not expressly apply or could be said to apply by necessary implication as held by the Supreme Court in A. S. K. Kri-shnappa v. S. V. V. Somiah, : [1964]2SCR241 . We are, therefore, really concerned with the implication of the interim order of this Court staying all further proceedings in the suit. It is contended by Mr. Mukherjee that in spite of the order of this Court staying all further proceedings in the suit, the plaintiff was not debarred from making an application for final decree. He submits that the said order did not operate as an order of injunction restraining the plaintiff from filing an application for final decree and consequently, the plaintiff's right to apply for a final decree was not suspended. It is contended that what was stayed by this Court was the proceedings in the suit, and not the filing of an application for a final decree by the plaintiff. Accordingly, the application of the plaintiff for the final decree should be held to be barred.

6. In Ganga Naicken v. Sundaram Aiyar, AIR 1956 Mad 597, it has been observed that a 'proceeding' may in some enactment mean an action or that which initiates an action and in other enactments it may also mean a step in an action. The word 'proceeding' is defined in the Shorter Oxford Dictionary as 'doing, a legal action or process, any act done or by the authority of the Court of law'. In 'Words and Phrases', Permanent Edition, Vol. 34, Page 142, a number of meanings taken from American decisions are given for the word 'proceeding'. There it is said that the term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked (see K. J. Lingan v. Joint Commercial Tax Officer, : AIR1968Mad76 ; Kochadai Naidu v. Naga-yasami Naidu, : AIR1961Mad247 ). A proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action for carrying into effect a legal right--(1940) Law Lexicon of British India, Page 1022.

7. It thus appears that a proceeding is a prescribed course of action for the enforcement of a legal right. In the instant case, the legal right was the right of the plaintiff to apply for a final decree. Such right was to be enforced by the making of an application as prescribed by Rule 5 (3) of Order 34 of the Civil P. C. when this Court by its order stayed all further proceedings in the suit, the effect of it was that the action that would be taken for the passing of a final decree was also stayed. In other words, the filing of an application for a final decree was stayed. Even if the plaintiff filed an application for a final decree, the Court could not entertain such an application,

8. It has been observed by the Supreme Court in Mulraj v. Murti Raghu-nathji Maharaj, : [1967]3SCR84 that in the case of a stay order, as it is addressed to the Court and prohibits it from proceeding further, as soon as the Court has knowledge of the order it is bound to obey it and if it does not, it acts illegally, and all proceedings taken after the knowledge of the order would be a nullity. In the instant case, if the plaintiffs had filed an application for a final decree and if the court had entertained it in spite of the order for stay, the filing of such application would be a nullity. The contention made on behalf of the appellant that in spite of the order of this Court staying all further proceedings in the suit, the plaintiff could file an application for a final decree is unsound.

9. In Govindnaik Gurunathnaik Kal-ghatgi v. Basawannewa Parutappa Karajgi, AIR 1941 Bom 203, after the passing of a preliminary mortgage decree in favour of a minor represented by his next friend, the next friend died and the suit was stayed under Order 32, Rule 10 of the Civil P. C. It was held that the period during which the suit was stayed should be excluded in computing the period of limitation for the making of an application for final decree on the ground that the right to apply for a final decree was suspended during the period for which the suit was stayed.

10. We may refer to a Bench decision of this Court in Hemendra Mohon Khas-nobis v. Dharaninath Chandra Roy, 25 Cal WN 376: (AIR 1921 Cal 381) relied on by Mr. Chandidas Roy Chowdhury, learned Advocate appearing on behalf of the plaintiff respondent. In that case, a third mortgagee obtained a preliminary decree and the last date for payment was July 31, 1911. The payment not having been made, he made an application on October 2, 1915 to make the decree absolute. Prior to this, the second mortgagee had instituted a suit to enforce his security, in which the High Court in its appellate judgment, dated March 10, 1914, expressed the opinion that the third mortgagee could not sell the property before he had paid up the second mortgagee, and a payment was made by him to the second mortgagee on May 22, 1915. Sir Ashutosh Mookerjee, C. J. who delivered the judgment of the Bench observed : 'In these circumstances, we are of the opinion that his right to apply for an order absolute was temporarily suspended and was not revived till the 22nd May 1915'. The application was, accordingly, held to be not barred by limitation.

11. In the instant case, before the plaintiff's right to apply for a final decree accrued this Court stayed all further proceedings in the suit. The effect of that order was that the plaintiff's right to apply for a final decree was suspended during the period for which the stay order remained effective. In other words, the plaintiff was prevented from making an application for final decree, for the Court where the application was to be filed was prohibited from entertaining any such application. It was after the dismissal of the appeal on April 11, 1972 that the plaintiff's right to apply accrued, and the application for a final decree having been filed by the plaintiff on April 11, 1975 which was the last day of limitation, it was not barred. In our view in such cases whenever the question is whether the plaintiff is entitled to exclude a certain period in computing the period of limitation for filing an application for a final decree, the test, for determining such a question would be whether the plaintiff was prevented, either expressly or by necessary implication, from making such an application during the period. If it is found that the plaintiff was so prevented, he would be entitled to exclude the period in computing the limitation. As it has been found in this case that the plaintiff's right to apply did not accrue during the period the order for stay of all further proceed ings remained operative, the plaintiff was entitled to exclude that period in computing limitation for the filing of the application. The application was not, therefore, barred as contended on behalf of the appellant.

12. For the reasons aforesaid, the decree of the court below is affirmed and this appeal is dismissed, but in view of the facts and circumstances of the case, there will be no order for costs.

13. On behalf of the appellants a certificate for appeal to the Supreme Court under Article 134A(b) of the Constitution has been prayed for. We do not, however, think that the case involves a substantial question of law of general importance so that the same is required to be decided by the Supreme Court. In the circumstances, the prayer for Certificate is disallowed.

Sharma, J.

14. I agree.


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