UNNIMADHAVAN NAIR ALATHUR TALUK Vs. SREENARAYANA INVESTMENT

JUDGEMENT

(1.) DEFENDANT in O. S. 240 of 1985, Sub Court, Palakkad is the Revision Petitioner. The suit was filed by the respondent for realization of money. It was contended that there was an equitable mortgage in favour of the plaintiff and it was found so. However, the trial court held that a preliminary decree for accounting is to be passed. This finding was arrived at by the trial court in the judgment dated 31/10/1989, wherein it was held thus:

(2.) GOING by the judgment, a preliminary decree should be passed. But the decree drafted was not a preliminary decree but a composite decree in a mortgage suit, whereby the decree holder could straightaway execute the decree. In fact, the decree holder did file an execution petition. At that juncture, the defendant filed I. A. 1470 of 1991 for amendment of the decree dated 31/10/1989. In the application, the defendant contended that it is necessary to pass a final decree and only thereafter execution could be taken. It was contended that the decree drafted was erroneous and based on the judgment, a preliminary decree should have been drafted. I. A. 1470 of 1991 was filed in June, 1991, i. e. After 1 1/2 years of passing of the judgment and decree. The trial court allowed I. A. 1470 of 1991 on 21/11/1992.

(3.) AFTER the decree was amended, the plaintiff filed I. A. 4830 of 1993 for passing the final decree. The defendant raised an objection that the application for passing the final decree is barred by limitation as three years elapsed from the date of the preliminary decree dated 31/10/1989. It was contended that the amendment of the decree as per the order dated 21/11/1992 in I. A. 1470 of 1991 is immaterial for computing the period of limitation. The trial court rejected this contention raised by the defendant and held that the application is not barred by limitation. The trial court also passed a final decree by the "order" impugned in this revision.