REBA SARKAR Vs. BISWESWARLAL SHARMA

JUDGEMENT

(1.) THIS apple is at the instance of the defendants in a suit for mortgage and it is directed against the final decree passed in the suit. The only question that is involved in this appeal is whether the application of the plaintiff for a final decree was barred by limitation.

(2.) THE suit was decreed in a preliminary form on march 26, 1968. The decree inter alia directed the defendants to pay the decrial amount within six months. Being aggrieved by the preliminary decree, the defendants preferred an appeal against the same to this Court being F. A. T. No. 1890 of 1968. In the said appeal, the defendant obtained an interim order staying all further proceedings in the suit pending the disposal of the appeal. On April 11, 1972 the said appeal against the preliminary decree was dismissed for default. The plaintiff made an application for final decree on April 11, 1975, that is, more than three years after the last date of payment fixed by the preliminary decree. The application was opposed by the defendants. It was contended by them that as the application was made three years after the date of payment of the decreetal amount, it was barred by limitation.

(3.) THE learned Subordinate Judge took the view that as the appeal was in continuation of the suit, the period of limitation should be computed from the date of the dismissal of the appeal for default on April 11, 1972. In that view of the matter, he overruled the contention of the defendants that the application was burned by limitation and passed the final decree as prayed for. Hence this appeal.