MUNSHI RAM Vs. SITA RAM

JUDGEMENT

(1.) As both these appeals involved common question of law and fact, the same are proposed to be disposed of by a common judgment. The trial Court as well as the first appellate Court have also decided these matters by a common judgment.

(2.) The appeals arise out of two applications filed by respondent Sita Ram under Order 34. Rule 8 of the Cod? of Civil Procedure, wherein prayed for the passing of a final decree against the appellants, which were dismissed by the trial Court as time barred, but on appeal the decision arrived at by the trial Court was set aside and the applications stand allowed These appeals have been filed by Munshi Ram and others, who were respondents before the trial Court The case has a chequered history One Diwana was the original mortgagor and he obtained two preliminary decrees for possession on July 31, Iv62 by way of redemption Both these decrees were against the mortgagees, ie9 the present appellants An appeal is said to have been filed by these mortgagees and proceedings were ordered to be stayed The appeals were dismissed by the then District Judge on January 17, 1965 and second appeal tiled before the learned Judicial Commissioner was also dismissed on December 6, 1965. Review petition is also said to have been filed, but with no fruitful result, ft would be very relevant at this stage to make a mention of the fact that respondent had moved two petitions before the trial Court for the passing of final decree on May 6, 1963 But as said above, the proceeding were ordered to be stayed by the then District Judge in appeals having been filed by the mortgagees. It was on June 2, 1969 that the original mortgagor moved two applications under Order 34, Rule 8 of the Code of Civil Procedure before the trial Court for passing the final decree As the original mortgagor had died, his widow was brought on record and she also died soon thereafter and Sita Ram moved and application under Order 22, Rule 3 of tae Code of Civil Procedure claiming himself to be the legel representative on the basis of a gift executed by Diwana, the original mortgagor, as well as legal representative of Parwati on the basis of a ˜Will alleged to have been executed by her. The application was allowed, as per detailed order dated November 24, 1980 and thereafter, the parties were asked to lead evidence on issue No 1 in respect of limitation The trial Court passed final decree and the applications stood allowed. The appeal filed by the mortgagees was accepted and the case was remanded back for fresh decision that some applications on record had not been disposed of and these required leading of evidence. The applications were dismissed in default as nobody appeared on behalf of the mortgagors. The application for restoration was made and allowed on May 23, 1985 The morgagor went in appeal, which was allowed on April 17, 1986 and the case was again sent back for deciding the main applications on merits in view of certain observations made by the Additional District Judge

(3.) On remand the case was taken up again and it was found that the applications mentioned in the judgment of the appellate Court already stood dismissed, as not pressed and the question of limitation was again gone into and decision was arrived at afresh on the issue. On appreciation of the material placed on record and on the basis of certain decided cases the trial Court held that limitation for the filing of the applications could at best start running maximum from the date, ie9 January 17, 1965, when the appeal filed by the mortgagees was dismissed by the District Judge It was further held that the time spent in appeal as well as in review petition before the learned Judicial Commissioner could not be excluded while computing the time which is prescribed, i.e , three years, The applications were, consequently, held as time barred -