GAJANAN CHINTAMAN DESHPANDE Vs. KARNATAK GLASS INDUSTRIES

JUDGEMENT

(1.) This is a plaintiff's regular first appeal against the decree passed by the Civil Judge, Sr. Dn. Belgaum, in Spl S No 67 of 1953. The respondents are the original defendants 1 and 2. Defendant-1 executed two mortgage deeds in favour of the plaintiff on 24-12-46 and 26-7-47 mortgaging its properties and borrowed certain amounts from the plaintiff. Defendant-2 who had no interest in the mortgage properties gave a personal guarantee and became a surety for the discharge of the mortgage debt of defendant-1 The plaintiff brought the suit against both the defendants. The learned Civil Judge, Sr. Dn , Belgaum, made a preliminary decree on 20-11-1954 under Or.34, R.4 CPC. The preliminary decree gave six months time to pay the decretal amount failing which the plaintiff was entitled to make an application for a final decree under Or.34, R.5 CPC. The suit against defendant-2 was dismissed. The plaintiff preferred an appeal to the High Court of Bombay challenging the dismissal of his suit against defendant-2. Defendant-1 was not impleaded as a party in the said appeal. Consequent upon the re-orgnisation of States, the said appeal was transferred to the High Court of Mysore where it was renumbered as RA. (B) 191/1956 This Court allowed the plaintiff's appeal and made a decree against defendant-2 on 25-11-1960 This Court came to the conclusion that the liability of defendant-2 as surety was co-extensive with that of defendant-1 The plaintiff thereafter filed an application, Ex.153, on 6-9-1961 in the Court of the Civil Judge, Sr. Dn , Belgaum, under Or 34, R 5 of the CPC. and prayed for a final decree for sale of the mortgage property to recover a sum of Rs 2,53,865-15-0 with future interest It was stated in the application that the right to apply for a final decree under Or 34, R.5 CPC accrued on the expiry of six months from the date of the decree passed by the High Court in RA (B) No 191/1956 dated 25-11-1960 It was therefore asserted that as the said period of six months expired on 26-5-1961, the cause of action or the right to apply under Or 34, R 5 accrued on 26-5-61. The learned Civil Judge. Sr Dn Belgaum, by his order dated 13-4-62 dismissed the plaintiff's application. Ex 153, holding that the same was barred by time under Art 181 of the Limitation Act The learned Judge took the view that the right to apply for a final decree under Or 34. R.5 accrued on the expiry of six months after the passing of the preliminary decree by the trial Court on 20-11-1954 and not after the expiry of six months from the date of the decree passed by the High Court in RA. (B) 191/1956 against defendant-2 It is the correctness of the decision of the trial Court that is challenged in this regular first appeal. It is, however, necessary to mention that the appellant has confined his claim in this appeal onlv to a sum of Rs 1,00,000 and has paid the Court fee on the said amount.

(2.) It is not disputed by the learned Counsel for either party that the article in the First Schedule of the Limitation Act 1908, applicable to the present application under Or 34, R 5 CPC. is art. 181 which reads as follows:

(3.) The question for consideration in this case, therefore, is as to whether the preliminary decree passed by the trial Court in this case on 20-11-1954 was challenged in the appeal preferred by the plaintiff. The plaintiff secured a preliminary decree under Or.34, R.4, against defendant-1 who alone had mortgaged the properties in favour of the plaintiff. The plaintiff had, therefore, no grievance whatsoever against the preliminary decree passed by the trial Court against defendant-1. Defendant-1 has not challenged the preliminary decree passed against him. Defendant-2 also did not file any appeal challenging the preliminary decree passed against defendant-1. The plaintiff also did not challenge the decree passed against defendant-1 under Or.34, R.4 CPC. It is because the plaintiff was not challenging the preliminary decree against defendant-1 that he did not implead defendant-1 as a party to the appeal which he preferred against defendant-2. We have therefore no hesitation in arrivig at a conclusion that the preliminary decree passed in favour of the plaintiff and against defendant-1 by the trial Court on 20-11-1954 was not challenged by any one in appeal. As the preliminary decree passed by the trial Court was not challenged In appeal, the preliminary decree passed by the trial Court became final and conclusive. It is the decree of the trial Court in this case therefore that could be the basis for applying for a final decree under Or.34, R.5 CPC.