KAZA RAMAKOTAYYA AND ORS. Vs. NIMMAGADDA SITHARAMASWAMI, MINOR BY MOTHER AND GUARDIAN MAHALAKSHMAMMA AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of proceedings for the passing of a final decree in a mortgage suit. The preliminary decree was passed on the 23rd December, 1937 and time for redemption was granted till the 23rd June, 1938. The application for final decree - -I.A. No. 822 of 1943 - -was filed on 9th September, 1942, that is to say, more than three years after the time for redemption expired along with an application, I.A. No. 1193 of 1943, to excuse the delay in filing the former' application. It was alleged that some of the defendants were representing that they would settle and pay the amount due and that the next friend of the plaintiff being a woman devoid of worldly knowledge, believed their words and was under the impression that there would be no bar of limitation, as the decree was in the name of a minor. The learned Subordinate Judge accepting these grounds condoned the delay and overruling the objections raised in I.A. No. 822 of 1943, passed the final decree. The defendants 4, 6 and 8 have preferred this appeal.

(2.) THE appellants contend that the Court below had no power to condone the delay in filing the application for final decree, pointing out that Section 5 of the Limitation Act is not applicable to such applications. The contention is well -founded and must be upheld. The section says:

(3.) THE appeal is accordingly allowed with costs here and in the Court below.