VENKATESH VIRUPAX DESHPANDE Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) this appeal is preferred against final decree dated 17-11-1990 passed by the learned Civil Judge, Gokak in F.D.P. no. 3/1989.

(2.) the 1 st respondent/plaintiff-decree-holder filed O.S. No. 172/1981 against theappellant and respondents 2 to 7 Judgment-debtors for recovery of the amount due under the mortgage deed by sale of mortgaged properties. the suit was decreed on 7-11-1983 and a preliminary decree was passed. the Judgment-debtors were granted six months to pay the decretal amount.

(3.) aggrieved by the Judgment and decree passed in O.S. No. 172/1981, thedefendants have preferred R.F.A. No. 257/1984 before this Court and the same is pending. In that appeal the appellants herein obtained an interim order of stay which came to an end on the expiry of 10 weeks from 18-7-1984. the plaintiff/dccrcc-holder filed an application on 17-11-1990 under Order 34, Rule 5 of the C.P.C. for drawing up of a final decree. the Judgment debtors resisted the application on the ground that as the stay order passed in R.F.A. No. 257/1984 came to an end on the expiry of 10 weeks from 18-7-1984, the application filed by the decree-holder for drawing up of a final decree on 5-9-1989 was barred by time as per article 137 of the Limitation act as the right to apply for a final decree accrued to the decree-holder no sooner the interim order passed in the R.F.A. No. 257/1984 came to an end. the trial Court overruled the objections and held that as the defendants/Judgment-dcbtors themselves have gone in appeal against the preliminary decree and obtained a stay order they cannot contend that the application was barred by time. accordingly, he passed the final decree on 17-11-1990. Hence, one of the Judgment-debtors has come up in appeal.