BALDEV SINGH Vs. KISHAN SINGH

JUDGEMENT

(1.) In this letters patent appeal filed by the defendant mortgagees, the facts relevant are straight and simple. On 30.11.1963 a preliminary decree for redemption of the suit property on payment of Rs. 29,676/- was passed in favour of the plaintiff-respondents The plaintiffs were allowed three months' time to deposit the aforesaid amount and in case of failure the defendants were, made entitled to apply for a final decree. The plaintiffs not feeling satisfied with the quantum of the amount made payable by them preferred Regular First Appeal No. 49 of 1964 in this Court. The same, however, was dismissed on 20.11.1973. During the pendency of this appeal, an application was moved by the plaintiffs for the grant of stay of proceedings under Order 34, Rule 8 of the Code of Civil Procedure (for short, 'the Code'). On 19.11.1965, this Court passed the following order :-

(2.) After the disposal of the above-said regular first appeal, the plaintiffs moved an application on 3.12.1973, for the extension of time for depositing the decretal amount of Rs. 29,676/-. The trial Court vide detailed order dated 3.1.1974, extended the time for the deposit of the amount upto 3.2.1974. The amount was actually deposited by the plaintiffs on 1.2.1974. On deposit of this amount, an application under Order 34, Rule 8 of the Code was moved on 4.11974 for passing the final decree. This application, however, was contested by the defendants-appellants, inter alia on the plea that the same was barred by time. Having failed on this issue in the trial Court, defendants re-agitated the matter before the learned Single Judge who vide his judgment under appeal has concurred with the decision of the trial Court. It is the same very issue which has now been agitated before us.

(3.) Mr. Viney Mittal, the learned counsel for the appellants, has raised a twin argument before us : (i) the application filed by the plaintiff respondents on 3.12.1973 for extension of time for depositing the decretal amount was filed after more than three years of the expiry of time allowed under the preliminary decree and, therefore, was barred by limitation, and similarly (ii) the application under Order 34, Rule 8 of the Code was also filed after an interRegulation m of more than three years from the passing of the preliminary decree and, therefore, the same too was barred by time. In nutshell, the stand of the learned counsel is that in terms of Article 137 of the Limitation Act these applications could not be filed after the passing away of more than three years. We are, however, of the opinion that this stand merits no acceptance. So far as the application for extension of time referred to above was concerned, the same had been filed in terms of sub-rule (2) of Rule 7 of Order 34, which provides that :-