AMMATHAYI AMMAL Vs. SIVARAMA PILLAI

JUDGEMENT

(1.) The plaintiff brought the suit on a hypothecation bond executed in his favour by the defendant. A preliminary decree was passed on 6 November, 1916. Four months time was allowed for payment. The plaintiff applied for a final decree on 5 November, 1919. His application was dismissed, for non-payment of batta, on 10 January, 1920. He applied again for the passing of a final decree on 10th September, 1920. The defendant contended that the application for the final decree was barred by limitation under Art. 181. The District Munsif disallowed the objection of the defendant and passed a final decree. The defendant appealed and the Subordinate Judge dismissed the appeal. He now prefers this Second Appeal.

(2.) It is contended by Mr. T. S. Ramaswami Aiyar, who appears for the appellant, that Art. 181 of the Limitation Act applies to applications for the passing of a final decree. It is well settled that Art. 181 applies to an application by the plaintiff for the passing of a final decree--vide Pattabirama Naidu V/s. Subramania Chettti (1917) 7 L W 438, Mummadi Venkatiah V/s. Boganatham Venkatasubbiah (1921) 42 M L J 51 and Ahmad Khan V/s. Mussammat Gaura (1917) I L R 40 All 235. The time for applying, for the passing of a final decree, began to run from 6th March, 1917, and it is urged by the appellant that the application having been made, on 10 September, 1920, more than three years after the time began to run, the application is barred.

(3.) Mr. T. M. Krishnaswami Aiyar, who appears for the respondent, urges that his client could not have applied to the District Munsif for the passing of a final decree, as there was an adjudication by a Court that the hypotheca did not belong to the defendant, mortgagor. The defendant's husband brought a suit O.S. No. 674 of 1916, on 13 June, 1916, against the present plaintiff, as first defendant, and the defendant herein, as the 2nd defendant, for a declaration that the hypotheca was his. That suit was decreed in plaintiff's favour on 26 April, 1917. The first defendant, that is the plaintiff in the present suit, filed an appeal to the District Court which was dismissed. He preferred S. A. No. 979 of 1919 and the High Court held that the plaintiff in that suit had no title to the property and that it was the property of the defendant therein and dismissed the suit. The contention of Mr. Krishnaswami Aiyar is that, as there was a valid decree in favour of the plaintiff in O.S. No. 674 of 1916, that the property which was mortgaged to the plaintiff herein was his and that the mortgagor had no title, He could not have asked the District Munsif to pass a final decree in his favour and to have the property sold, and that he could only apply after the decree in that suit was set aside by the High Court. His contention is that during the pendency of Suit No. 674 of 1916, there was a suspension of his right to apply for a final decree and time did not begin to run against him. He relies upon an observation of their Lordships of the Privy Council in Kala Mea V/s. Harperink (1908) I L R 36 C 323 at 334 (P C) : "It has been laid down again and again that in sales under the direction of the Court, it is incumbent on the Court to be scrupulous in the extreme and very careful to see that no taint or touch of fraud or deceit or misrepresentation is found in the conduct of its ministers. The Court, it is said, must at any rate not fall below the standard of honesty, which it exacts from those on whom it has to pass judgment."