KRISHNAJI MORESHWAR JOSHI Vs. BHAKATRAM SADASHIV PATIL

JUDGEMENT

(1.) THE plaintiff-decree-holder is the appellant in this second appeal. His application for drawing final decree in FDP 2/82 on the file of the Addl. Munsiff, Chikodi, was allowed by the trial Court on 31-8-1984. On appeal in R. A. 104/84, the learned Addl. Civil Judge, Chikodi has allowed the appeal on 14-8-1986 and dismissed the application. The question of law that is framed in this second appeal is as follows :

(2.) THE averments in the application are that in the suit for redemption of possessory mortgage for Rs. 700/-, a preliminary decree has been passed to redeem the mortgaged property which are 29 guntas in RS No. 174/6, apart from 1/8th right to take water. The decree-holders contended that the amount has been paid in due time and therefore he sought for the final decree. The judgment-debtor resisted the application contending that the decree-holders are not entitled to file the present application as they have failed to comply with the terms of the decree. In the additional statement of objections filed by them they claimed damages for the improvement they have made to the suit property. An amount of Rs. 700/- was to be deposited as per the decree, and it is seen that the same was deposited on 20-2-1973. A preliminary decree was passed on 18-8-1972, giving six months period for redemption. According to the judgment-debtor, the amount should have been deposited on 18-2-1973, but it was paid only on 20-2-1973; there is a delay of two days. It is also seen an appeal was preferred against the preliminary decree in RA 104/73 which came to be dismissed on 8-8-1977. The trial Court rejected the claim of the bar of limitation set up by the defendants and ordered for final decree. The appellate Court held that the amount was not deposited by the plaintiff in time as per the order of the Court. The appellate Court found that when the suit was decreed on 18-8-1972 and though an appeal was filed and disposed of on 6-8-1977, the plaintiffs filed an application for final decree only on 1-3-1982 i. e. , after three years from the date of passing of the order of the appellate Court. The appellate Court also held that the application for passing final decree must have been made within three years from the date of deposit and the appellate Court has not even taken into consideration the pendency of the appeal which was disposed of on 6-8-1977. In this view, the appellate Court held that the application for final decree is barred by limitation and dismissed the same.

(3.) IN this second appeal, it was contended that for an application under Order 34 rule 8 CPC, Article 137 of the Limitation Act does not apply, for an application requesting the Court to draw final decree, no period of limitation applies. In fact, drawing up of a final decree is the duty of the Court; immediately after deposit of Rs. 700/-, it was incumbent upon the Court to draw the decree. The application contemplated under Or. 34 Rule 8 is only by way of reminder just as in the partition suit. It was further submitted that as long as there is a decree for foreclosure declaring that the mortgagor has lost all his right, the mortgagee's right to redeem cannot be defeated. In this case, admittedly there is no decree for foreclosure declaring that the mortgagor has lost the right to redeem and has lost right to get possession. If that be so, the application under Order 34 Rule 8 CPC is maintainable.