GOVINDNAIK GURUNATHNAIK KALGHATGI Vs. BASAWANNEWA PARUTAPPA KARAJGI

JUDGEMENT

(1.) THIS is a second appeal from a decision of the Assistant Judge of Dharwar, which raises a question of limitation.

(2.) THE material facts are that there was a mortgage passed in 1920, which became vested in plaintiffs Nos. 1 and 2, plaintiff No.2 being a minor. THEy filed a suit to enforce the mortgage, plaintiff No.1 being the next friend of plaintiff No.2. On February 20, 1925, a preliminary decree was passed, and an application for a final decree could have been made at any time after August 20, 1925. In January, 1927, plaintiff No.1 died, and no next friend of plaintiff No.2 was appointed. THE result was that under Order XXXII, Rule 10, of the Civil Procedure Code, all further proceedings in the suit were stayed for the time being. Plaintiff No.2 attained his majority on April 12, 1933, and he died on September 13 in the same year. THE applicant was adopted by the widow of plaintiff No.1 in June, 1933, and in July, 1934, applied, as legal representative and heir both of plaintiff No.1 and of plaintiff No.2, for a final decree. Both the lower Courts have held that the application is barred under Article 181 of the Indian Limitation Act, which provides that applications for which no period of limitation is provided elsewhere shall be barred after three years from the time when the right to apply accrues. THE lower Courts have held that the right to apply for a final decree accrued on August 20, 1925, and as this application was not made until July, 1934, it is barred.

(3.) IF the time during which this suit was stayed under Order XXXII, Rule 10, be excluded, the application is in time. We, therefore, allow the appeal with costs throughout. The application will have to go back to the lower Court to be dealt with according to law. Sen, J.