NACHHATTAR SINGH Vs. TEJA SINGH

JUDGEMENT

(1.) THIS is plaintiff s regular second appeal against the judgment and decree of the Additional District Judge, Bathinda, whereby the decree passed by the trial Court was set aside, thus dismissing the application filed by the plaintiff for passing of final decree.

(2.) BRIEFLY put, applicant plaintiff filed a suit for possession by way of redemption of land measuring 35 Kanals 10 Marias situated at Village Nathpura on payment of Rs. 3400/ (mortgage money ). A preliminary decree was passed on 20. 11. 1968. The mortgage amount was deposited by the applicant-plaintiff on 10. 12. 1968. The appeal filed by the judgment debtor was dismissed on 4. 9. 1974 by the District Judge, Bathinda, and on further appeal this Court remanded the case to the Additional District Judge for fresh decision on merit. The learned Additional District Judge on reconsideration of the mater dismissed the appeal vide judgment and decree dated 8. 12. 1983. The appeal filed against this judgment and decree was dismissed by this Court on 15. 3. 198 in limine. It is thereafter that the application for passing of final decree was filed by the plaintiff which claim was allowed by the Sub-Judge vide judgment and decree dated 27. 11. 1986. Before the appellate Court, it was urged by the appellant that second application for passing of the final decree is not maintainable under law. The lower appellate Court on reconsidering the matter came to the conclusion that the second application for final decree was not maintainable and that the same was barred by time. Consequently the appeal was allowed thereby declining the plaintiffs prayer for passing of final decree.

(3.) AS regards non suiting of the plaintiff on the ground of limitation, the counsel urged that the defendant's appeal was dismissed by the High Court on 15. 3. 1984. Since it is settled law that decree of the trial Court merges in the decree of the appellate Court and it is only the appellate decree which is to be executed, limitation for passing of the final decree ought to have been taken from the order passed by the High Court on 15. 3. 1984. Examined so, the application filed by the plaintiff for passing of the final decree is within limitation.