KUMBAKONAM MUNICIPAL COUNCIL Vs. POONACHI ALIAS HABINA BEEVI

JUDGEMENT

(1.) THIS Civil Revision Petition is at the instance of the Kumbakonam Municipal Council questioning the correctness of the order of the Court below dismissing an application filed by it under Order 34, rule 5, Code of Civil Procedure, on the ground that the petition is barred by time. The petitioner instituted O. S. No. 446 of 1973, District Munsif's Court, Kumbakonam, for the recovery of arrears of property tax. According to the petitioner, a house in Pothamarai South Street, Kumbakonam town, belongs to the respondent and has also been assessed in her name. For the two half years 1971-72 and two half years 1972-73, the tax had remained unpaid in a sum of Rs. 2,345.20 p. and in spite of demands made by the petitioner, the respondent did not pay the same. Claiming that the house tax is a charge over the property under section 85 of the Tamil Nadu District Municipalities Act and, therefore, the petitioner is entitled to collect the amount personally and also on a charge over the property in question, the petitioner laid the suit in O. S. No, 446 of 1973, District Munsif's Court, Kumbakonam, and prayed for a decree directing the respondent herein to pay the amount periodically and also for a charge preliminary decree over the property and for other incidental reliefs.

(2.) THE respondent contended that the house had been leased to one Viswanathan Chettiar and as a result of an arrangement between her and the lessee, the property tax was liable to be paid by the lessee and such an arrangement had been earlier recognised and, therefore, the petitioner should have collected the property tax only from Viswanathan Chettiar and his heirs and not from the respondent.

(3.) THE learned counsel for the petitioner contends relying upon the language of Order 34, rules 2, 3,7 and 8 Code of Civil Procedure that in cases failing under those rules, an application by the plaintiff is contemplated whereas, under rule 4 the words, "the plaintiff shall be entitled to apply" alone are found and, therefore, no application even for the passing of a final decree is contemplated and, therefore, no question of limitation for filing such an application would arise at all. Support for this is sought to be drawn from the analogy of an enquiry into mesne profits under Order 20, rule 12 (3), Code of Civil Procedure, by Court which does not contemplate even an application as stated by the Full Bench in Ramasubramanya Pattar v, Karimbil Pati2.On the other hand, the learned counsel for the respondent contends that the preliminary decree in Form No. 5-A in the instant case had been passed under Order 34, rule 4, Code of Civil Procedure, and time for payment of the amount had also been granted and an application for the final decree consequent to the nonpayment within time granted by the Court would fall under Order 34, rule 5 (a), Code of Civil Procedure, which again contemplates an application by the plaintiff and, therefore, an application is necessary and such an application should also be made within three years from the date when the amount becomes payable as provided for under Article 137 of the Limitation Act. THE decree, as seen already, is a preliminary decree for sale under Order 34, rule 4, Code of Civil Procedure, and time for payment till 22nd September, 1974 had been granted to the respondent. It is not disputed that the amount was not paid within the time granted by Court and there was no extension of time also. In accordance with clause (iii) of the decree, the petitioner secured a right to apply for a final decree for the sale of the charged properties on the failure of the respondeat to pay the amount on or before 22nd September, 1974. in other words, the right to apply for a final decree in accordance with clause (iii) of the preliminary decree accrued to the petitioner on the failure of the respondeat to pay the amount on or before 22nd September, 1974. THE circumstance that a charge had been prayed for in the suit cannot make any difference to the applicability of the principle, especially in view of the form of the decree that has been granted in favour of the petitioner in this case. Where a person who has obtained a preliminary decree for sale finds that the amount has not been paid within the time granted by the decree, in order to sell the properties and realise , the amount due, necessarily he has to obtain a final decree and the right to apply for such a final decree arises on the failure of the defendant to pay the amount within the time granted. It has been consistently laid down that to such an application, Article 181 of the Limitation Act, 1908, corresponding to Article 137 of the Limitation Act XXXVI of 1963, providing for a period of three years to make the application when the right to apply accrues, would apply. (Vide Subbalakshmi Ammal v. Ramanujam Chetty1 Mummadi Venkatiah v. Boganatham Venkata Subbiah2 and Rajamayyer alias Subramania Iyer v. Venkatasubba Iyer.3.