PALTAN MAHTO Vs. JAGARU MAHTO

JUDGEMENT

(1.) This application in revision is by the defendants. The question raised in this application for consideration is, as to whether any period of limitation applies for preparation of a final decree in a suit for redemption of a usufructuary mortgage.

(2.) Opposite Party No. 1 instituted Title Suit No. 909 of 1951 in the Court of the Munsif at Gopalganj for redemption of certain usufructuary mortgage bonds in favour of different sets of defendants and had also claimed mesne profits. A preliminary decree was passed in the suit on 28-9-1953 and three months time was allowed by the trial Court to the plaintiff to deposit the mortgage money, in default of payment whereof, a decree for foreclosure was to be passed under the provisions of Order 34, Rule 7 (1)(b) of the Code of Civil Procedure. After the passing of the said preliminary decree, the plaintiff did not take any step in the matter until 16-12-1970, when he filed a petition praying to permit him to deposit the mortgage dues determined under the preliminary decree and thereafter to prepare a final decree. A separate petition was also filed by him praying to condone the delay in making the deposit and applying for preparation of the final decree. By order dated 6-2-1971, the learned Additional Munsif condoned the delay and directed the plaintiff to make the deposit of the mortgage money by a chalan. In pursuance of the said order, the plaintiff deposited the sum of Rupees 682/- by a chalan dated 12-2-1971 to the credit of the petitioners and notice was issued in the matter to them. After service of notice, the petitioners filed an objection taking a plea of limitation and asserting that no final decree could be passed in this case on account of the default committed by the plaintiff in not making the deposit in time and the right to redeem the mortgage bonds in question in terms of the preliminary decree stood barred, and as such, the Court could not now permit the plaintiff to deposit the mortgage dues by extending the period granted for depositing the same beyond the period for preparation of the final decree itself. Learned Additional Munsif, however, relying on the provision of Section 148 of the Code held that the said provision entitled him to extend the period originally fixed by him for making the deposit of the mortgage money.

(3.) Section 148 of the Code reads as follows :