P SUBRAMANIA PILLAI Vs. VADIVU AMMAL

JUDGEMENT

(1.) THE defendant in O.S. 183 of 1973, District Munsif's Court, Tirunelveli, is the appellant in this second appeal. That suit was instituted by deceased Shanmugham Pillai, whose legal representatives are respondents 1 to 8 herein, for the recovery of a sum of Rs.3,979-77 towards the amounts due on two mortgages dated 24.2.1958 for Rs.2,000 and 26.2.1959 for Rs.100 respectively, executed by the appellant in his favour. On 26.3.1973, a preliminary decree for sale in form 5-A of the Appendix D to the Civil Procedure Code was passed and the appellant was directed to pay into Court on or before 26.4.1973, or, any later date upto which time for payment may be extended by court, a sum of Rs.4,455-27 with interest on Rs.2,100 at 6 per cent per annum from 26.3.1973 till the date of payment. Admittedly, the appellant did not pay into Court any amount on or before 26.4.1973 or even later, as it is common ground that time for payment was also not extended. Meanwhile on 5.11.1975, the plaintiff in the suit died and in I.A. 887 of 1979, the respondents sought to bring themselves on record as the legal representatives of the deceased plaintiff. That application was opposed by the appellant herein on the ground that it was barred by limitation. However by an order passed on I A. 887 of 1979, the respondents-were brought on record as the legal representatives of the deceased plaintiff in the suit. On 21.12.1978, the respondents filed an application for passing of a final decree and that application was resisted by the appellant on the ground that it was barred by limitation, having been filed more than three years from the date of the preliminary decree. THE learned District Munsif, Tirunelveli, after referring to the order passed in LA. 887 of 1979 held that in the light of that order, the final decree application should be allowed and accordingly passed a final decree. Aggrieved by this, the appellant herein preferred an appeal in A.S.275 of 1979 before the Sub-Court, Tirunelveli. THE appellate court took the view that though the legal representatives of the decree holder did not put forward any ground that the appellant was a debtor, the lower court should have had reasons to presume such a plea to have been made and held that the respondents were prevented from filing an application for the passing of a final decree owing to the Debt Relief Acts, and excluding that period, the application for the passing of a final decree had been filed in time. On that view, the lower appellate court affirmed the final decree passed by the trial court and dismissed the appeal, the correctness of which is questioned in this second appeal.

(2.) LEARNED counsel for the appellant submitted that having regard to the passing of a preliminary decree against the appellant in Form 5-A under O.34, R.4, C.P.C. and the granting of time for payment, an application for the passing of a final decree consequent upon the non-payment within the time granted by court, would fall under 0.34, R.5(3), C.P.C, and such an application should have been made within three years from the date when the amount became payable, as provided for under Art.137 of the Limitation Act, 1963. Strong reliance in this connection was placed by the learned counsel for the appellant upon the decision in Kumbakonam Municipal Council v. Pomachi, (1980)2 M.L.J. 378. On the other hand, learned counsel for the respondents contended that the appellant was entitled, as a debtor, to the benefits of the Debt Relief Acts, and if the period, during which proceedings could not be initiated against the appellant is excluded, then the application filed would be well within time.