DAKSHINAMOORTHI PATHAN Vs. KRISHNASAMI KADAVARAN

JUDGEMENT

(1.) The plaintiff's application for the passing of a final decree for the sale of the hypotheca in pursuance of the preliminary decree passed in his favour on 1 February 1918 fixing the time for payment as 1 August 1918. though allowed by the District Munsif, was disallowed by the learned Subordinate Judge of Tanjore on the ground that the petition was barred by limitation under Art. 181, Limitation Act. The plaintiff has preferred this second appeal.

(2.) Original Suit No. 47 of 1917 was a suit instituted by the plaintiff to recover money due on two hypothecation bonds, dated 30 November 1898, and 7 November 1914, respectively, the first bond comprising plaint items 1 to 3, while the second comprised plaint items 4 and 5. The mortgagor was defendant 1 and his son defendant 2 and defendant 3 claimed title, as auction, purchaser, to items 4 and 5, while defendant 4 was a private alienee of items 1 to 3. The preliminary decree passed by the First Court is dated 1 February 1918, and the time fixed for payment was 1 August 1918. An appeal preferred by defendant 3 making defendant 4 also as a party respondent along with the plaintiff and defendants 1 and 2 was allowed in his favour on 14 February 1919, and the interest of defendant 3, if any, in items 4 and 5 was declared not liable for the mortgage amount. The second appeal preferred by the plaintiff was dismissed on 31 March 1921; the plaintiff's present petition for the passing of a final decree was filed on 25 March 1924, i.e., within three years from the date of the High Court's decree, but beyond 3 years after the preliminary decree passed by the first Court on 1st February 1918, and also beyond 3 years from the date fixed for payment (1 August 1918). In these circumstances the legal representative of defendant 4 raised objection to the passing of a final decree on the ground that the application was barred by limitation.

(3.) The first Court overruled the contention and held that the period of limitation for the petition for passing the final decree was to be calculated from the date of the High Court's decree 31 March 1921. The District Munsif accordingly passed a final decree for the sale of the hypotheca. Defendant 4's legal representative preferred an appeal and the lower appellate Court held that the starting point of limitation was not the date of the High Court's decree, but the date fixed for payment in the preliminary decree passed by the District Munsif. This learned Subordinate Judge was of opinion that the decree must in effect be treated as a compound decree, one passed in respect of the mortgage Ex. A for the amount due thereon, and the other in respect of mortgage Ex. B for the amount due thereon, the amounts due under each mortgage being separately decreed and the properties covered by mortgage being separate. He held that the appeal and the second appeal relating to mortgage under Ex. B only could not affect the starting point of limitation in respect of the portion of the decree regarding the mortgage under Ex. A, though written in one paper he held that the decrees were really two, and that the plaintiff ought to have applied for the passing of the final decree in respect of the properties covered by Ex. A within 3 years from the date fixed for payment (1 August 1918), and not having done so the plaintiff's right was barred. He relied on the decision reported in Christiana Benslawn V/s. Banarashi Proshad [1915] 19 C.W.N. 287, and observed that the decree in the present case was a compound decree , being an incorporation of two decrees, and as the appeal preferred by defendant 3 did not imperil the decree passed on the 1 mortgage Ex. A the period of limitation for the present application started from the date fixed in the preliminary decree.