S. Veluchamy Nadar v. Diravia Nadar — 1991 DIGILAW 208 (MAD)

Judgment :- 1. I would have disposed of this revision petition with a very short order but for a valiant attempt made by learned counsel for the petitioner to overthrow an unsurmountable stare decisis in relation to a principle of law accepted for over seventy five years. No doubt, he failed to convince me, but I must place on record my appreciation for die presentation of the matter in a different perspective warranting a fresh look. 2. The short facts are these: The petitioner obtained a preliminary decree on a mortgage on 24.4.1982 against the respondents. In the preliminary decree, the Court granted time to the defendants upto 24.5.1982 for paying the amount due under the decree to the petitioner. The defendants did not make any payment and the petitioner filed an application for passing of final decree on 23.4.1986. The petitioner also filed Application No. 782 of 1988 under S. 5 of the Limitation Act for condonation of the delay in filing the application for passing final decree. The only reason given in the affidavit filed in support of the application for the inordinate delay of nearly a year was that the petitioner was conducting the case on behalf of all the mortgagees and he had to go out of town on some work and he could not file the application for final decree in time. 3. The trial Court held that S. 5 of the Limitation Act would not apply to an application under O. 34, R. 5 of the Code of Civil Procedure. However, the trial Court went into the merits of the application and held that the petitioner did not make out sufficient cause for not filing the application in time. Consequently, the application filed by the petitioner was dismissed. This revision is directed against the said order. 4. Learned counsel for the petitioner contends that the Court below is in error in holding that S.S of the Limitation Act does not apply to applications under O. 34, R. 5 of the Code of Civil procedure. I have no difficulty in agreeing with him. The view taken by the Court below is clearly erroneous. S.S of the Limitation Act will apply to any appeal or any application other than an application under any of the provisions of O. 21 of the Code of Civil Procedure. I have no difficulty in agreeing with him. The view taken by the Court below is clearly erroneous. S.S of the Limitation Act will apply to any appeal or any application other than an application under any of the provisions of O. 21 of the Code of Civil Procedure. The language is wide enough to include applications under O. 34, R. 5 of the Code of Civil Procedure. The Court below has observed that the petitioner has not produced any judgment in support of his contention that S. 5 of the Limitation Act would apply. When the language of S. 5 of the Limitation Act by its own force would apply to all applications excepting those under O. 21, Code of Civil Procedure, there is no justification for holding that applications under O. 34, R. 5 of the Code of Civil Procedure are not covered by the Section. 5. It appears that reliance was placed by the respondents in the Court below on a judgment of the Orissa High Court in Bhagabat Sit v. Balaram Sit 1. In that case, it is observed that S. 5 of the Limitation Act has no application to Applications under O. 34, R. 8 of the Code of Civil Procedure. The relevant passage in the judgment reads as follows: “It is undisputed that S. 5 has not been made applicable to an application under Order 34. There can be therefore no controversy that S.S has no application to this case” It is not necessary for me to express any opinion on the correctness of the view taken by the Orissa High Court, as it was a case under the Limitation Act of 1908, prior to the introduction of Limitation Act of 1963. Under the present Act, the section expressly excludes only applications under O. 21 of the Code of Civil Procedure. Hence, it will apply to all other applications under the Code of Civil Procedure. The latin Maxim expressio unius est exclusio alterius will apply. 6. On the merits of the application, I agree with the Court below that the petitioner has not made out a case for condonation of delays of nearly a year. The reason given by him that he was out of town during the relevant period is hardly acceptable. Admittedly there are other parties who are similar Interested in getting the final decree in the suit. The reason given by him that he was out of town during the relevant period is hardly acceptable. Admittedly there are other parties who are similar Interested in getting the final decree in the suit. No explanation is given as to why an application was not filed earlier with the help of the other parties. Nor has the petitioner chosen to give evidence before the Court below and prove the averments made by him in his affidavit. No record has been produced by him to show that he was obliged to be away from the town and he could not file the application in time. Hence, the Court below is right in holding that the petitioner has not made out a case for condonation of delay. 7. It is then contended by learned counsel for the petitioner that there is no period of limitation for an application under O. 34, R. 5 of the Code of Civil Procedure for passing a final decree. Learned counsel develops his arguments in the following manner. A ‘decree’ is defined by S. 2(2) of the Code as a formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The explanation to the Section is in the following terms: “A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be a partly preliminary and partly final.” It is argued that the term ‘proceeding’ used in the Explanation would mean ‘step in-action’. According to learned counsel, when a further step-in-action is necessary for the purpose of completely disposing of the suit, there cannot be any period of limitation for requiring the Court to take such step inaction. It is also contended that in a pending suit, when the Court is requested to complete the proceeding, by passing a final order therein, it will be highly incongruous to say that it should be done within a particular period of limitation. According to learned counsel, the principle which is applicable to a suit for partition will also apply to a suit on a mortgage. According to learned counsel, the principle which is applicable to a suit for partition will also apply to a suit on a mortgage. Learned counsel submits that once a preliminary decree is passed in the suit, it cannot come to an end excepting by a final decree. If an application for passing of final decree is dismissed, that will not put an end to the suit. According to him, an anomalous situation will arise viz., the suit will remain undisposed and yet the plaintiff, who got a preliminary decree in his favour will not be in a position to get the fruits of the said decree by having a final decree pursuant thereto. 8. In support of the above arguments, learned counsel invites my attention to the cases in which the term ‘proceeding’ has been considered and interpreted. In Ganga Naicken and another v. A. Sundaram Aiyar 1, this Court held that a ‘proceeding’ may in some enactment mean an action or that which initiates an action and in other enactments it may also mean a step in an action and that the meaning given to the word in any particular enactment cannot be taken as a safe guide in its application to other enactments. It is also held that the meaning to be attributed to the word must depend upon the scope of the enactment and the particular context in which it occurs. On the facts of the case, it is held that a copy application cannot ordinarily be considered to be a proceeding even in the sense of a step in an action; but in the context in which it appears in S. 87(2) of the Madras Court Fees Act, 1955, as it arises from a suit or proceeding, it can come within the meaning of the word ‘proceeding’. 9. In Kochadai Naidu and another v. Nagayasami Naidu and others 2, it is held that the provisions of S. 24 the Code of Civil Procedure will apply to a proceeding referred to a Civil Court under S. 146 of the Code of Criminal Procedure and such proceeding could be transferred to another civil Court by the superior Court under S. 24 of the Code of Civil Procedure. The word ‘proceeding’ occurring in g. 24 of the Code of Civil Procedure is interpreted. The word ‘proceeding’ occurring in g. 24 of the Code of Civil Procedure is interpreted. The relevant passage in the judgment is as follows: “It is then necessary to consider whether these characteristics would be sufficient to constitute the case during its career in the civil Court as a “proceeding” in that Court as to render section 24, Civil Procedure Code, applicable. The word ‘proceeding’ is defined in the Shorter Oxford Dictionary as “doing, a legal action or process, any act done by the authority of a Court of law”. In “Words and Phrases” Permanent Edition, Vol. 34, a number of meanings taken from American decisions are given for the word ‘proceedings’. Two of them which I give below bring out the essential import of the words. (i) “The word “proceeding” ordinarily relates to forms of law, to the modes in which judicial transactions are conducted”(page 141). (2) “The term “proceeding” is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right and hence it necessarily embraces the requisite steps by which a judicial action is invoked.” (page 142) In Ramanathan Chettiar, In re ((1942) I MLJ 111) Venkataramana Rao, J. continuing the meaning of the term as it occurred in the Court-fees Act of 1870, observed that the word has been interpreted in various senses in different status according to the intent and scope of the statute, sometime in narrow sense and sometimes a wide sense and the word when used alone had been interpreted to mean “all judicial proceedings”. In Ganga Naicken v. Sundaram Iyer (1956-1-M.L.J. 63), Krishnaswami Nayudu, J., held that the meaning to be given to the word “proceeding” would depend on the scope of the enactment in which it occurred and the context in which the word was used. The learned Judge held that a copy application which could not be held to be a step in any action would be a proceeding within the saving clause contained in S. 87(2) of the Madras Court-fees Act, 19SS. Recently, I had to construe the same section in regard to the proceedings before the Collect or antecedent to an award under the Land Acquisition Act in Firm of Chakravarti Iyengar v. Collector (1960-2-M.L.J. 207). Recently, I had to construe the same section in regard to the proceedings before the Collect or antecedent to an award under the Land Acquisition Act in Firm of Chakravarti Iyengar v. Collector (1960-2-M.L.J. 207). The following passage at page 209 stated the rule of interpretation thus: “It is an accepted rule of interpretation, where a statute does not provide an interpretation for, a particular term or phrase, in order to arrive at the true meaning of the word or phrase one should have to understand it in connection with its context, collection, etc., in accord with the intention of the enactment and that no word or phrase should be understood detached from the context.” Learned counsel for the contesting respondents contended that a proceeding under the Code of Civil Procedure should satisfy two conditions, namely, (1) that it should have been initiated in that Court, and (2) that the Court should be competent to give relief to the party.” 10. In M/s. K.J. Lingan and another v. The Joint Commercial Tax Officer, Madras and ‘others 1 Venkatadri, J. held that the ‘meaning to be attributed to the word ‘proceeding’ would depend upon the scope of the enactment wherein the expression is used with reference to the particular context wherein it occurs. We made a reference to the two earlier judgments referred to above and pointed out that the term ‘proceeding’ was not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning would be governed by the statute. 11. A Full Bench of the High Court of Jammu and Kashmir had occasion to consider the term ‘proceeding’ in State of Jammu and Kashmir v. Abdul Ghani Patwari and another”. 2 A question arose with reference to right of a deliquent official to obtain copies of proceedings along with the show cause notice. One of the arguments was that a liberal construction should be placed upon the term ‘proceeding’ and it will entitle the delinquent not only to the copies of the charge sheet, the statements of the witnesses and the commissions report, but also to all the interim orders passed by the Commission, right from the day the complaint was produced before it. Adverting to the said argument, the Full Bench observed as follows:— “13. Adverting to the said argument, the Full Bench observed as follows:— “13. Turning now to his last ground, it may be pointed out, that the term ‘Proceeding’ has not been defined in the Act. Mr. Malik is indubitably right in arguing, that in case a liberal construction is placed upon this term, then an accused may be entitled, not only to the copies of the charge sheet, the statements of the witnesses and the Commissions report, but also to all the interim orders passed by the Commission, right from the day the complaint is produced before it. This, argues the learned counsel, and rightly so, may to a large extent be a mere exercise in futility; what then should be the real import of the term ‘Proceeding’? ‘Proceeding’ has been defined in Websters New International Dictionary as: i. Progress or movement from one thing to another; ii. the course of procedure in an action at law; and ii. any step or action taken in conducting litigation. If the aid of Dictionary is taken in interpreting the term ‘Proceeding’, then the apprehensions of Mr. Malik may certainly come true. Obviously, therefore, Dictionary cannot be always a sure guide for interpreting a legal term which is not defined in an Act. Guidance in such cases has to be taken from the intention of the Legislature, and the purpose for which the particular provision is made in a Statute. This rule of construction has been clearly enunciated by the Supreme Court in Bolani Ores Ltd v. State of Orissa ((1974) 2 SCC 77: AIR 1975 SC 17 ) wherein it was held (at Pp. 25, 26 of AIR): “As usual references have been made to the Dictionaries but quite often it is not possible to hold a dictionary in one hand and the statute to be interpreted in the other for ascertaining the import and intent of the word or expression used by Legislature. The shades of meaning of a word, its different connotations and collocations which one finds in a dictionary does not relieve us of the responsibility of having to make the ultimate choice of selecting the right meaning. We choose that meaning which is most apt in the context, colour and diction in which the word is used. The shades of meaning of a word, its different connotations and collocations which one finds in a dictionary does not relieve us of the responsibility of having to make the ultimate choice of selecting the right meaning. We choose that meaning which is most apt in the context, colour and diction in which the word is used. The use of a dictionary ad lib without an analysis of the entire Act, its purpose and its intent, for ascertaining the meaning in which the Legislature could have used the word or expression may not lead us to the right conclusion. With this caution before us for avoiding any of the aforesaid methods which might lead to a possible incongruity, we will examine the different facets to which our attention has been drawn.” 14. As already observed, the intention of the Legislature in amending sub-section (5) twice i.e., once in 1967 and then again in 1969 was to ensure, that fullest information was given to the accused, about the case found against him so that, he was not in any way hampered or handicapped in making out his defence, pursuant to the show cause notice, that might be issued by the Governor to him. Keeping in view the legislative intent and purpose of sub-section (5), ‘ copy of the proceeding’ should mean and include, not only copies of the statements of witnesses, the charge sheet and the final report of the Commission, but may also include, copies of the written statements of the accused and such interim orders passed by the Commission, which have a bearing on the defence of the accused. A Commission, for instance, might have closed defence evidence without any justification or even refused the prayer of the accused to cross-examine a prosecution witness in recording its reasons in a separate order. Copies of all such interim orders must also be supplied to him. The accused requires copies of all these documents and orders, for twofold purpose, on the one hand, of explaining the circumstances appearing against him in the evidence, and on the other hand, of establishing his innocence. But, copies of other documents or orders, which have neither any bearing or the prosecution case not on the defence of the accused, need not be supplied to him, though the same may also fall within the wider definition of the term ‘proceeding*. But, copies of other documents or orders, which have neither any bearing or the prosecution case not on the defence of the accused, need not be supplied to him, though the same may also fall within the wider definition of the term ‘proceeding*. Putting in a nut-shell ‘copy of proceeding’, should mean and include, copies of all those documents and orders, which disclose, not only the prosecution case, but which have also a direct bearing on the defence of the accused. Interpreted thus, sub-section (5) will be no more incapable of a reasonably strict compliance. No-fault can, therefore, be found with the view taken by the learned single Judge.” 12. The above decisions do not in any manner help learned counsel for the petitioner in his submission that there can be no period of limitation for an application to pass a final decree. Whatever may be the meaning of the word ‘Proceeding’ occurring in the Explanation to S. 2(2) of the Code of Civil Procedure, the answer to the question whether a period of limitation can be prescribed for an application to pass a final decree will be the same. Undoubtedly, it is possible to contend that the suit is still pending when a preliminary decree has been passed and a final decree has not been passed. But, a suit on a mortgage will stand on a different footing from a suit for partition. In a suit on a mortgage, the preliminary decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. The same cannot be said of a preliminary decree in a partition suit. Even in a final decree proceeding in a partition suit, some of the rights of the parties will remain undetermined and they can be concluded only by a final decree. On the other hand, what remains in a suit on mortgage after the passing of the preliminary decree is only to find out whether the amounts specified in the preliminary decree have been paid by the mortgagor to the mortgagee and in the event of a default oh the part of the mortgagor, the clauses contained in the preliminary decree should be given effect to by passing a final decree. Even the form of a preliminary decree in a mortgage suit will make this position clear. Even the form of a preliminary decree in a mortgage suit will make this position clear. Taking for instance the present case itself, clause 1 of the preliminary decree declares the amount due to plaintiffs 2 and 3 and defendants 8 to 13 on the mortgage mentioned in the plaint. Under clause 2, defendants 1 to 7 are directed to pay the amount on or before 24th May 1982. Under sub clause (ii) of Clause 2 of the decree, if payment is made on or before the date fixed, plaintiffs 2 and 3 and defendants 8 to 13 shall bring into Court all the documents in their possession or power relating to the mortgaged property and all such documents shall be delivered over to defendants 1 to 7. Under clause 3, if there is a default in payment, plaintiffs 2 and 3 and defendants 8 to 13 may apply to the Court for a final decree for the safe of the mortgaged property and on such application, the mortgaged property or a sufficient part thereof shall be directed to be sold. It is not necessary to refer to the other clauses of the decree. Suffice it to point out that the preliminary decree clearly specifies the course to be adopted in the event of the payment being made within the time fixed and in the event of a default on the part of the mortgagors. There is no question of any of the rights of the parties having been left open or left in doubt. It the payment is made, the mortgagees are bound to return the documents to the mortgagors as per clause 2(H) and if the payment is not made, it is open to the mortgagees to apply for a final decree for the sale of the mortgaged property. The decree has specified, as stated already, the relief to be prayed for in the application for passing final decree to be filed by the mortgagees and the course to be adopted by the Court on such application being filed. Hence, I do not accept the contention of learned counsel that in a suit on a mortgage, after the passing of the preliminary decree some more proceedings remain for the purpose of conclusively determining the rights of parties. Hence, I do not accept the contention of learned counsel that in a suit on a mortgage, after the passing of the preliminary decree some more proceedings remain for the purpose of conclusively determining the rights of parties. No doubt, some more proceedings remain to be taken for completely disposing of the suit, but in those proceedings, there is no question of any or the rights of the parties being determined by the Court. Hence, no comparison can be made between a suit for partition and a suit on a mortgage. Thus, the decisions referred to above interpreting the term ‘Proceeding’ will not have any bearing on the present question. 13. There is no merit in the contention that there can be no period of limitation for a ‘step in action’ in a pending suit. S. 2(j) of the Limitation Act defines “period of limitation” as the period of limitation prescribed for any suit, appeal or application by the Schedule. Under S. 3, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. The Schedule to the Act contains three divisions. The last relates to applications. Part I thereof prescribes period of limitation for applications in specified cases. Among them, Articles 118 and 120 will necessarily relate to applications in pending suits or proceedings. They are undoubtedly steps in action and limitation has been prescribed therefor in the Act. Part II of the division relates to all other a pplications. Necessarily sarily, it will apply irrespective of the pendency or disposal of the main suit or proceeding. The scheme of the Act has no indication whatever that it will not apply to ‘step in action’ in a pending proceeding. On the other hand, there are express provisions proving the contrary. Hence, I reject the contention. 14. Learned counsel places reliance on the ruling of the Supreme Court in a case which arose under the Provincial Insolvency Act to the effect that a preliminary decree for partition is a ‘final decision’. That is a case in Venkata Reddy And Others v. Pethi Reddy 1. A father in a joint Hindu family became insolvent and the family properties consisting of his and his two sons shares were sold by the Official Receiver. The transferee sold the entire property to the respondent before the Supreme Court. That is a case in Venkata Reddy And Others v. Pethi Reddy 1. A father in a joint Hindu family became insolvent and the family properties consisting of his and his two sons shares were sold by the Official Receiver. The transferee sold the entire property to the respondent before the Supreme Court. Thereafter, the sons filed a suit for partition of the joint family property and made the respondent a party thereto. A preliminary decree for partition was passed in favour of the sons. The decree was affirmed by the High Court in 1946. There was an application by t he sons for a final decree, which was granted ex parte. That decree was set aside at the instance of the respondent in 1950. By that time, S. 28-A was introduced in the Provincial Insolvency Act. On the question whether the first proviso to S. 28-A of the Provincial Insolvency Act would save the preliminary decree from being reopened, the Supreme Court held that the sale made by the Official Receiver was the subject matter of a ‘final decision’ by a competent Court inasmuch as that Court decided that the sale was of no avail to the purchaser, as the Official Receiver had no right to hold the sale, and the preliminary decree stood unaffected by the introduction of S. 28-A in the Provincial Insolvency Act. For that purpose, the Supreme Court considered the nature of a preliminary decree and held that the preliminary decree is a ‘final decision’ in so far as it concludes the rights of parties with regard to their shares in the property in question. In that connection, the following observations were made by the Supreme Court:— “A decision is said to be final when, so far as the Court rendering it is concerned, it is unalterable except by resort to such provisions of the Code of Civil Procedure as permit its reversal, modification or amendment. Similarly, a final decision would mean a decision which would operate as res judicate etween the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. Similarly, a final decision would mean a decision which would operate as res judicate etween the parties if it is not sought to be modified or reversed by preferring an appeal or a revision or a review application as is permitted by the Code. A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree, the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to, S. 97 of the Code of Civil Procedure which provides that where a party arrived by a preliminary decree does not appeal from it he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the Court passing that decree. The judgment of the Supreme Court is sought to be made use of by learned counsel for the petitioner by contending that even in a partition suit, a preliminary decree would amount to a final decision and the position would not differ in the case of a suit on a mortgage. According to him, the finality of the preliminary decree in a suit on a mortgage would be no better than the finality in a preliminary decree in a suit for partition. I do not agree. The reasons already given by me are sufficient to held that a preliminary decree in a suit on mortgage is entirely different from a preliminary decree in a suit for partition. 15. I do not agree. The reasons already given by me are sufficient to held that a preliminary decree in a suit on mortgage is entirely different from a preliminary decree in a suit for partition. 15. Learned counsel places reliance on some of the observations made by Ismail, J. in Sivan Pillai v. Anbayyan And Others 1. Those observations are realty obiter and they do not have any binding force. But, before referring to the said observations, it is better to refer to the catena of decisions on the question of limitation for an application to pass a final decree in a suit on mortgage. I will refer to them chronologically and come to the judgment of Ismail, J. in that order. 16. After the passing of the Civil Procedure Code in 1908, the first occasion on which the question arose as is evident from the Law Reports was before a Division Bench in Muhammad Hussqin Sahib And Another v. Abdul Karim Sahib 2. In that case, a decree for sale was passed in a mortgage suit on 7.10.1901., Before the new code was enacted an application for order absolute was made on the 6th of April 1904 Mt must be pointed out at this stage that under the provisions of the earlier Code, in so far as suits on mortgage were concerned, the relevant orders were to be made under the relevant provisions of the Transfer of Property Act, Viz., Ss. 88 and 89 thereof. Those Sections were repealed later by the introduction of the Civil Procedure Code (Act V of 1908). Under the provisions of the Transfer of Property Act, a mortgagee was to approach the Court for an order absolute, which corresponds to a final decree under the later Civil Procedure Code. Continuing the narration of the facts in the reported case, subsequent applications were made by the mortgagee in 1907, 1910 and 1912, all within three years of the immediately preceding application. Notices were sent to the judgment debtor; but the applications were dismissed without any relief being granted. The last application was made on 15th of April 1912. The judgment debtor raised an objection that the application was barred by limitation, as more than three years had elapsed from the date of the decree. The Court held that the application was not barred by limitation. The last application was made on 15th of April 1912. The judgment debtor raised an objection that the application was barred by limitation, as more than three years had elapsed from the date of the decree. The Court held that the application was not barred by limitation. The Division Bench held that the preliminary decree passed under S. 88 of the Transfer of Property Act was executable and in order to obtain the order absolute under S. 89 of the Transfer of Property Act, steps had to be taken in execution. Consequently, the Division Bench held that to such an application, Art. 182 or Article 183 of the Limitation Act would apply and not Art. 181. Therefore, the Bench held that there was a fresh starting point given to the decree-holder after the preliminary decree ripened into a final decree. In the said case, the question which has arisen before me did not arise for consideration. But the judgment in the said case was being misunderstood subsequently and reliance was being placed on the said judgment for the purpose of contending that Article 181 of the Limitation Act would not apply to an application for passing final decree in a suit on mortgage. That misconception was cleared by a Division Bench of this Court in Nimmala Mahankali v. Kallakuri Seetharamiah 3. The following passage in the judgment of the Division Bench is relevant: “We think, therefore, that the application was governed by Art. 181 and not by Art. 182. The decision in Hussain v. Karim (I.L.R. 39 Madras 544) is not against this view. In that case, the right to apply had accrued under the Transfer of Property Act and the earlier applications were all made under the said Act. It was held following Abdul Majid v. Jawahir Lal (I.L.R. 36 Allahabad 350), that such applications were in execution and that the decree holder having acquired a right to apply in a particular manner under the Transfer of Property Act, that right was not taken away by the provisions of O. 34. That decision is not applicable to a case where a right accrues for the first time under the new Code which has provided a complete remedy for such application. That decision is not applicable to a case where a right accrues for the first time under the new Code which has provided a complete remedy for such application. The decision in Lakshmi Acta v. Subbarama Ayyar (ILR 39 Madras 488), Bent Singh v. Berhamdeo Singh (19 C.W.N. 473) and Madho Ram v. Nihal Singh (ILR 38 Allahabad 21) support this position, although the learned Judges in some of these cases have held that even under the Transfer of Property Act, the application should have been under Art. 181 of the Limitation Act.” The said judgment was followed in M. Pattabirama Naidu And Others v. Subramania Chetty And Others 4 by another Division Bench of this Court. The Division Bench pointed out that the ruling in Hussain v. Karim 1 would not apply to a case falling under the Code of Civil Procedure of 1908 and expressed its concurrence with the view taken in Nimmala Mahankali v. Kallakuri Seetharamiah 2. The Division Bench also referred to the same view having been taken by Bombay, Allahabad and Calcutta High Courts, in Datto Atmaram v. Shankar Dattatraycr 3, Madho Ram v. Nihal Singh 4 and Bent Singh v. Berhandeo Singh 5 17. The matter came up for consideration again in. Subbalakshmi Ammal v. Ramanujam Chetty And Four Others 6, Mummadi Venkatiah v. Boganatham Venkata Subbiah 7 and Rajamayyer v. Venkatasubba Iyer 8. The first two cases were decided by a Division Bench. It was held that an application for a final decree in a mortgage suit more than three years after the date fixed for payment under the preliminary decree, is barred by limitation under Article 181 of the Limitation Act. The ruling in Pattabhirama Naidus case 9 was followed. 18. In Rajamayyer v. Venkatasubba Iyer 10, Patanjali Sastri, J. held that Article 181 of the Limitation Act governs an application for a final decree in a suit for sale or foreclosure. He relied on the ruling in Subbalakshmi Ammals case (ILR 42 Madras 52). 19. Thus, the uniform view taken by this Court in all the decision was that Article 181 of the Limitation Act would apply to an application for passing final decree under (5.34, R. 5 of the Code of Civil Procedure and the period of limitation was three years from the date of the preliminary decree. 19. Thus, the uniform view taken by this Court in all the decision was that Article 181 of the Limitation Act would apply to an application for passing final decree under (5.34, R. 5 of the Code of Civil Procedure and the period of limitation was three years from the date of the preliminary decree. Learned counsel for the petitioner places reliance on the observations found in Gade Subbayya v. Raja Kandukuri Venkata Hanumantha Bhushanarao And Another 11. That was a case decided by a Division Bench comprising of Wadsworth and Patanjali Sastri, JJ. On the facts of the case, no question of limitation arose for consideration. An application for passing a final decree was dismissed as a consequence to the Court holding that the debtor was entitled to the benefits of S. 19 of the Madras Agriculturists Relief Act (4 of 1938) and that the debt was wiped out. Revision Petitions were filed against the dismissal of the application for final decree. The Division Bench held that the Revision Petitions were not maintainable as the order was an appealable one. Then it was contended before the Bench that the revision against the other order under the provisions of the Madras Agriculturists Relief Act was not maintainable as the matter had become final in as much as the application for passing final decree had been dismissed. That argument was negatived by the Division Bench. It was held by the Division Bench that the suit was deemed to be pending after the passing of the preliminary decree till a final decree was passed and just because an application for passing final decree had been dismissed, that would not put an end to the suit. The Court took the view that it was within the competence of the Court to consider the questions whether the debtor was entitled to the benefits of the Agriculturists Relief Act and if a decision was given against the debtor, it was competent to the Court to pass a final decree at the instance of the mortgagee. The Court took the view that it was within the competence of the Court to consider the questions whether the debtor was entitled to the benefits of the Agriculturists Relief Act and if a decision was given against the debtor, it was competent to the Court to pass a final decree at the instance of the mortgagee. Reliance is placed upon the following passage in the judgment of the Division Bench: “As regards C.R.P. No. 656 of 1941 it was urged that the refusal of the Court below to pass a final decree having now become final, the petitioner could not be allowed to contend that a balance was still due to him under the preliminary decree as affirmed by the Privy Council. There is no force in this objection. The Court below did not purport to dismiss the suit as, indeed, if could not, having regard to the decision of the Privy Council in Lachmi Narain v. Balmukund Manvari 12 and it would be open to the petitioner, if he succeeded in this civil revision petition, to ask for a final decree to be made, for the balance claimed to be due under the preliminary decree, as the refusal to pass a final decree was based solely on the order made under S. 19 of the Act. Furthermore, it is still open to the respondent to apply for a decree in terms of O. 34. R. 5(i), Civil P.C., and the suit, must be considered to be pending till a final decree under either sub.r.(1) or sub.r.(3) of O. 34, R. 5 is passed. We therefore overrule the preliminary objection.” 20. The observations of the Division Bench cannot be torn out the context and utilised in the present case. The Division Bench did not have to consider the question of limitation. I have already referred to the judgment of Pataniali Sastri, J. in Rajamayyers 1 case. He was a party to the Division Bench in the above case. The observations of the Division Bench cannot be torn out the context and utilised in the present case. The Division Bench did not have to consider the question of limitation. I have already referred to the judgment of Pataniali Sastri, J. in Rajamayyers 1 case. He was a party to the Division Bench in the above case. If the Division Bench had ruled that Article 181 of the Limitation Act would not apply to an application for passing final decree in a mortgage suit, as the suit was similar to a partition suit and deemed to be pending, the learned Judge would not have held in the later case that Article: 181 of the Limitation Act would govern an application for passing a final decree in a suit for sale or foreclosure. Hence, the interpretation sought to be placed by learned counsel on the judgment of the Division Bench in Subbayyas case 2 cannot be accepted. 21. Now turning to the judgment of Ismail, J. in Sivan Pillais case 3 , a reading thereof shows that it is in three parts. In the first part, the learned Judge has categorically stated that Article 137 of the Limitation Act of 1963 would apply to an application for passing a final decree in a suit on a mortgage. According to the learned Judge, the position is too well settled and it is too late in the day to question the same. The relevant observation of the learned Judge is in the following words:— “It is too late in the day for questioning the correctness of the view that Article 181 of the old Limitation Act or Article 137 of the new Limitation Act will apply to such an application though it does not appear that a particular feature peculiar to suits of this nature has been considered in the past” Then the learned Judge proceeds to compare a suit for partition with a suit on a mortgage and observes that in a suit on a mortgage, the same does not come to an end by the passing of the preliminary decree. According to the learned Judge, an anomalous situation arises by the dismissal of an application for passing a final decree on the ground of limitation. According to the learned Judge, an anomalous situation arises by the dismissal of an application for passing a final decree on the ground of limitation. The learned Judge observe that after the preliminary decree is passed, the suit could be brought to an end only by the passing of a final decree and in the event of the same being dismissed as out of time, the decree holder is in a situation where he could not get the fruits of the decree and yet a suit is pending in the eye of law. After referring to the judgment of. Somayya, J. in Angammal v. Muhammad Sulaiman Lebbai 4. which dealt with a suit for redemption, the learned Judge observe as follows:— “I have extracted in extenso from the judgment of Somayya, J., only for the purpose of showing the scope of the various rules contained in Order 34 as well as for pointing out that once a preliminary decree is passed, the application for passing a final decree is an application only in a pending suit and the Code itself has not provided for the dismissel of that suit after the passing of the preliminary decree on the ground that the decreeholder had not applied for a final decree. The general question, when a preliminary decree has been passed, the suit is still pending and there is no provision in the Code of Civil Procedure for dismissing the suit after the preliminary decree on the ground that the decree-holder has hot applied for the passing of the final decree, whether there is any justification at all for applying any Article prescribing a particular period of limitation in the Limitation Act, to an application for passing a final decree, since the failure to apply for the passing of the final decree within the time prescribed by the Article does not terminate the suit, but only produces the anomalous situation of there being a fruitless preliminary decree and the suit itself pending permanently may have to be considered at the appropriate level. It is against the above background, I propose to consider the question that arises in the present case.” 22. It is against the above background, I propose to consider the question that arises in the present case.” 22. Learned counsel for the petitioner places reliance on this part of the judgment of Ismail, J. I am or the view that the observations contained in that part of the judgment will not help the petitioner as the learned Judge has clearly pointed out that it is for the Legislature to find a solution. But, one basic principle of the law of Limitation was not brought to the notice of the leamed Judge. It is well known that the Limitation Act only bars the remedy and does not extinguish the right of parties. In Lakshmi v. Achutha Menon 1 it was observed as follows:— “The general principle is that Limitation ban the remedy and does not extinguish the right itself.” It was pointed out that the only exception was found in S. 28 of the Limitation Act, 1908. In Rulia Ram v. Fateh Singh 2, a Pull Bench of the Punjab High Court expressed the same principle in the following words: “It is well known that the Limitation Act with regard to personal actions, bars the remedy without extinguishing the rights. It is only in the case of a suit for possession of any property, that on the determination of the period of limitation not only the remedy but the right also, is extinguished under S. 28 of the Limitation Act.” 23. The corresponding Section for S. 28 of the Limitation Act of 1908 in the Limitation Act of 1963 is S. 27. Thus, there being only one exception to the rule that limitation bars the remedy and does not extinguish the right, it is not correct to say that an anomalous situation will arise by keeping the suit pending and yet depriving the decree-holder of the fruits of the decree. The principles underlying the provisions of the Limitation Act is that the litigants should be diligent in exercising their rights and seeking, the enforcement thereof through Courts of law it is well settled that equitable considerations are out of place in construing the provisions of a statute of limitation and strict grammatical meaning of the words is the only safe guide, as the rule of limitation is based on public policy. Vide Bootamal v. Union of India 3 24. Vide Bootamal v. Union of India 3 24. Coming back to the judgment of Ismail, J. in Sivan pillais, case 4, the third part of the judgment is based on the question of commencement of the period of limitation. In that case, the decree did not fix any time limit for payment of the money due to the mortgagee. Hence, the learned Judge held that the period of limitation did not commence to run. The learned Judge took the view rightly, if I may say so, that the failure on the part of the Court to fix the time limit should not affect the rights of the parties. Hence, the judgment of the learned Judge was based upon the particular facts of that case and that judgment cannot be utilised by learned counsel for the petitioner to support his contention in the present case. 25. The judgment of Ismail, J. in Sivan Pillar case 5 was referred to and the principles of Limitation Act were considered at length by the Allahabad High Court in Baljit Singh v. J.L. Cunnington And Others 6. While holding that Article 137 of the Limitation Act would apply to an application for passing a final decree in a suit on a mortgage, the Allahabad High Court pointed out that the observations contained in Sivan Pillais case 7 could not help a party to escape the provisions of the Limitation Act. I must make a reference to two other judgments of this Court. Ratnam, J. has in The Kumbakonam Municipal Council, By Its Chairman v. Poonachi Alias Habina Beevi 8 and P. Subramania Pillai v. Vadivu Ammal & Ors 9 held that Article 137 of the Limitation Act would apply to an application for passing of final decree under O. 34, R. 5 of the Code of Civil Procedure. The learned Judge has also referred to the judgment of Ismail, J. in Sivan Pillais case 10 and proceeded to make reference to the earlier judgments of this Court starting from Subbalakshmis case 11. Thus, the consistent view taken by this Court is that Article 137 of the present Limitation Act corresponding to Article 181 of the old Limitation Act would apply to applications under O. 34, R. 5 of the Code of Civil Procedure for passing a final decree. The language of Article 137 of the Limitation Act, 1963, is very wide. Thus, the consistent view taken by this Court is that Article 137 of the present Limitation Act corresponding to Article 181 of the old Limitation Act would apply to applications under O. 34, R. 5 of the Code of Civil Procedure for passing a final decree. The language of Article 137 of the Limitation Act, 1963, is very wide. No doubt, it is a residuary Article, but it applies to all applications other than those for which a specific provision is made elsewhere in the Code. 28. Learned counsel for the petitioner contends that the application for passing a final decree having been made pursuant to a specific direction contained in the preliminary decree, would not be governed by the provisions of the Limitation Act. Learned counsel invites my attention to Clause 3 of the Preliminary Decree. I have already adverted to this clause and pointed out that in the event of default in payment as prescribed by the decree, plaintiffs 2 and 3 and defendants 8 to 13 may apply to the Court for a final decree for the sale of the mortgaged property. The direction contained in the preliminary decree is only to make an application for sale of the mortgaged property as per the provisions of the Code. No Court can confer a right on any party which is not already recognised by any law. The Court cannot create new rights. The preliminary decree in this case or in any other suit on a mortgage, could only contain directions in accordance with law and direct the parties concerned to take steps pursuant to other existing provisions of law. In this case, clause 3 of the decree directs the decree-holder to apply to the Court for a final decree for the sale of the mortgaged property. That means, the decree-holder is directed to apply to the Court under the provisions of O. 34, R. 5 of the Code of Civil procedure for passing a final decree. Such an application would undoubtedly be governed by the provisions of the Limitation Act. Even if a Court directs a party to file an application without reference to any particular provision of law, or an application which is not governed by any specific provision of law, it will fall within the terms “any other application” found in the first column of Article 137 of the Limitation Act. Even if a Court directs a party to file an application without reference to any particular provision of law, or an application which is not governed by any specific provision of law, it will fall within the terms “any other application” found in the first column of Article 137 of the Limitation Act. The application mentioned in column 1 of Article 137 of the Limitation Act would include an application filed pursuant to specific direction given by a Court. 29. The Supreme Court had occasion to deal with Article 137 of the Limitation Act in The Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma 1 It was held by the Supreme Court that the Article is not confined to applications contemplated by or under the Code of Civil Procedure, but it would apply to all applications made to a Court under any enactment. 30. Hence, I reject the contentions put forward by learned counsel for the petitioner and dismiss the Civil Revision Petition. But, in the circumstances of the case, there will be no order as to costs.