K KUNJAMMA Vs. BHAGEERATHY AMMA GOMATHY AMMA

JUDGEMENT

(1.) :- This second appeal arises from a final decree for redemption of a mortgage. The preliminary decree passed on 19-1-1970 directed the plaintiff-mortgagor to deposit the mortgage amount of Rs.154.40 and an amount of Rs. 200/ - towards value of improvements within a period of two months from that date or any later date up to which the payment may be extended by the Court. It was further directed that on such payment the defendant-mortgagee shall deliver up all the documents in his possession and re-convey the property free from all encumbrances. Plaintiff did not deposit the amount within the prescribed time, nor did he seek extension of time to make the deposit. In the meantime he died. The 1st defendant also died since the date of the decree. An application was filed by the legal representatives of deceased plaintiff on 2-2-1977 as I.A. No. 388 / 1977 for passing a final decree after recording them as the legal representatives and permitting them to make the necessary deposit. Request was also made for recording defendants 2 to 6 as the legal representatives of deceased 1st defendant and for impleading defendants 8 to 12. During the pendency of that petition another application was filed as I.A. 67/1980 for execusing the delay in filing the petition for final decree. The delay was condoned and final decree was passed on 30-6-1981. On appeal the First Additional District Judge, Trivandrum set. aside the order of the trial Court and dismissed the petition holding that the petition was barred by limitation. Hence the second appeal.

(2.) It is urged on behalf of the appellants that R.8 of O.34, C.P.C. enables them to make the payment at any time before a final decree debarring them from all right to redeem the mortgaged property has been passed. The application for final decree is within time, according to the counsel, since such a decree has not been passed in this case. On the other hand, counsel for respondents has taken a plea that the petition is barred by limitation having been filed long after the expiry of 3 years from the date fixed for payment and it was contended that Art. 137 of the Limitation Act would apply to such a case. The Court below took the view that Art. 137 applies.

(3.) The question that arises for determination in this second appeal is whether there is period of limitation for making the deposit by the mortgagor-plaintiff in a redemption suit and to file an application to pass a final decree and whether Art.137 of the Limitation Act applies to such a deposit or application.