S VELUCHAMY NADAR Vs. DIRAVIA NADAR

JUDGEMENT

(1.) I would have disposed of this revision petition with a very short order but for a valiant attempt made by learned counsel for the petitioner to overthrow an unsurmountable stare decisis in relation to a principle of law accepted for over seventy five years. No doubt, he failed to convince me, but I must place on record my appreciation for die presentation of the matter in a different perspective warranting a fresh look.

(2.) THE short facts are these: THE petitioner obtained a preliminary decree on a mortgage on 24.4.1982 against the respondents. In the preliminary decree, the Court granted time to the defendants upto 24.5.1982 for paying the amount due under the decree to the petitioner. THE defendants did not make any payment and the petitioner filed an application for passing of final decree on 23.4.1986. THE petitioner also filed Application No. 782 of 1988 under S. 5 of the Limitation Act for condonation of the delay in filing the application for passing final decree. THE only reason given in the affidavit filed in support of the application for the inordinate delay of nearly a year was that the petitioner was conducting the case on behalf of all the mortgagees and he had to go out of town on some work and he could not file the application for final decree in time.

(3.) IT is then contended by learned counsel for the petitioner that there is no period of limitation for an application under O. 34, R. 5 of the Code of Civil Procedure for passing a final decree. Learned counsel develops his arguments in the following manner. A ?decree? is defined by S. 2(2) of the Code as a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final'. The explanation to the Section is in the following terms: ?A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. IT is final when such adjudication completely disposes of the suit. IT may be a partly preliminary and partly final.? IT is argued that the term ?proceeding? used in the Explanation would mean ?step in-action?. According to learned counsel, when a further step-in-action is necessary for the purpose of completely disposing of the suit, there cannot be any period of limitation for requiring the Court to take such step inaction. IT is also contended that in a pending suit, when the Court is requested to complete the proceeding, by passing a final order therein, it will be highly incongruous to say that it should be done within a particular period of limitation. According to learned counsel, the principle which is applicable to a suit for partition will also apply to a suit on a mortgage. Learned counsel submits that once a preliminary decree is passed in the suit, it cannot come to an end excepting by a final decree. If an application for passing of final decree is dismissed, that will not put an end to the suit. According to him, an anomalous situation will arise viz., the suit will remain undisposed and yet the plaintiff, who got a preliminary decree in his favour will not be in a position to get the fruits of the said decree by having a final decree pursuant thereto.