INDIAN OVERSEAS BANK Vs. SURJIT SINGH AND ORS.

JUDGEMENT

(1.) On a request made by the learned Counsel for the petitioner, the present petition is treated to be a petition filed under Art. 227 of the Constitution of India.

(2.) The plaintiff bank is the petitioner before this Court. A suit for recovery of Rs. 2,53,569.00 was filed by the plaintiff bank under the provisions of Order 34 Rule 4 of the Civil Procedure Code. It was claimed by the plaintiff bank that the defendants had mortgaged their property for securing the loan and as such the defendants had failed to repay the amount, therefore, the plaintiff bank was entitled to recover the aforesaid amount by sale of the mortgaged property.

(3.) The learned trial Court vide judgment and decree dated April 6, 1987 held that the defendants had indeed taken the amount from the plaintiff Bank. During the course of trial, the defendants also appeared and admitted that they had executed the mortgage deeds in question relied upon by the plaintiff Bank. However, while passing the decree, the suit of the plaintiff bank was decreed merely for a recovery of the aforesaid amount. No decree was passed with regard to sale of the mortgaged property. Subsequently, an application dated April 15, 1988 was filed by the plaintiff Bank claiming that the aforesaid decree was liable to be modified since the suit filed by the plaintiff Bank was for the recovery of the amount by the sale of mortgaged property. The aforesaid application filed by the plaintiff Bank has been dismissed by the learned trial Court vide order dated Dec. 2, 1989. Primarily, the application has been dismissed on the ground that since no appeal had been filed against the judgment and decree dated April 6, 1987 by the plaintiff bank and the aforesaid application filed by the plaintiff bank was in fact a review application which had been filed after the expiry of a period of 30 days from the date of decree, therefore, the said application was barred by limitation.