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1994 DIGILAW 345 (CAL)

Raghunath And Sons P Ltd v. Bijoy K Goenka

1994-11-15

Dilip Kumar Basu, N.K.Mitra

body1994
Judgment 1. DEVOID of all details, the facts of this case inter alia, are that one Nagarchand Goenka was the owner of the suit property. He died on 4th April, 1950 leaving the suit property and other properties and also left considerable debts. Smt. Rama Sundari Devi was appointed as the administratrix to the estate of the said Nagar Chand goenka, and was empowered to raise loan for repayment of the debts of the decessed owner, and accordingly, she created a mortgage On 4th June, 1962 in favour of Messrs. Raghunath and Son (P) Ltd., the petitioner herein, and collected loan from the petitioner. The said administratrix did not repay the said loan nor paid the interest accrued on it, and ultimately, the petitioner filed a suit for recovery of money due by enforcement of mortgage amongst other claims against the said administratrix, Rama Sundari Devi, in the Court of the learned district Judge at Darjeeling being Title Suit No. 84 of 1976. In the said suit, an exparte preliminary decree was passed on 15th July, 1980 wherein several immovable properties of the decessed owner, Nagarchand Goenka were attached. Against the said exparte decree the said Rama Sundari Devi [filed an application under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure on 18th August, 1980 which gave rise to Misc. Case No. 55 of 1980 which is still pending. Subsequently, the said Rama. Sundari Devi died on 15th February, 1987 and the petitioner filed an application for substitution of the opposite parties herein as heirs and legal representatives of the deceased defendant on 28th April, 1987. The opposite party No. 1 herein also filed an application under Order XXII Rule 4 read with Section 5 of the Limitation act on 30th November, 1992 for substituting his name in place and stead of Rama Sundari Devi. The learned Assistant District Judge at Darjeeling, by his Order No. 155, dated 24th November, 1993 rejected the petitioner's said application for substitution, and against the said order the petitioner has moved the present revisional application. 2. The learned Assistant District Judge at Darjeeling, by his Order No. 155, dated 24th November, 1993 rejected the petitioner's said application for substitution, and against the said order the petitioner has moved the present revisional application. 2. IT appears from the impugned order that the learned Judge rejected the above application, inter alia on the ground that since the time for making application for drawing up of the final decree in the mortgage suit had long expired, inasmuch as, the period of limitation in such case would be governed by Article 137 of the Limitation Act, 1963, the application for substitution could not be said to have been filed in a pending proceeding and hence it was not maintainable. Mr. Bhattacharyya, learned counsel appearing on behalf of the petitioner, however, contends inter alia, that no period of limitation would be attracted so far as the present case is concerned, since after a preliminary decree is passed in a suit, it. is the Court's duty to make it final and whenever the decree holder applies before the Court for drawing up of a final decree, the Court cannot refuse it and till a final decree is passed, the suit would be deemed to be pending and as such, the Court below had acted with material irregularity in rejecting the petitioner's application for substitution on the ground that Article 137 of the Indian Limitation Act, 1963 would apply to the present case and that the application for substitution was not maintainable since no application was made by the plaintiff decree holder for making the preliminary decree a final one within three years from the date of passing of the preliminary decree in the year 1980, the decree had become in executable after the expiry of the said period and it could not be said that suit was still pending. Further, according to Mr. Bhattacharyya, since, the application under Order IX Rule 13 of the Code of Civil Procedure filed by the original defendant was pending, it could not be said that the suit was not pending and that the application for substitution had become (time barred. Secondly, no period of limitation would be attracted to the facts and circumstances of the present case according to Mr. Secondly, no period of limitation would be attracted to the facts and circumstances of the present case according to Mr. Bhattacharyya, since when a preliminary decree is passed, it decides the rights and liabilities of the parties, and as such, the question of deciding whether the right to sue survives on the death of one of the parties to the preliminary decree is redundant and not at all necessary. Thirdly, Mr. Bhattacharyya contends that after the peliminary decree is passed, the suit is not dismissed on the failure on the part of the plaintiff to take further steps in the matter, and no application is also necessary for making the preliminary decree final, as when a preliminary decree is passed, it is the Court's duty to make it final. In support of his contentions Mr. Bhattacharyya has referred to a number of decisions viz., kedar Nath Dutt v Harra Chand Dutt, I. L. R. 8 Calcutta 420: Surendra keshub Roy v Khetter Krishto Mitter I. L. R. 30 Calcutta 609; Madhabmani dast v Lambert, I. L. R. 37 Calcutta 796: Shusan Chandra Mandal v chabimoni Dasi and Ors. 53 CWN 582 Chandranath. Bhattacharyya v State of west Bengal and Ors. 1990 (2) CLJ 159 1991 (2) CHN 151 Baynath Ram and ors. v Mr. Tunkowati Kuer and Ors. AIR 1962 Patna 285 (FB) Basiruddin khawaja Mohiuddin v Binraj Murlidhar and Ors. AIR 1987 BOMBAY 235: S. B. Saigal v Smt. Vidya Vijan AIR 1978 Allahabad 82: Lt. Col. S. K. Kashyap and ors, v State of Rajasthan AIR 1971 Supreme Court 1120 and Bhagwan swaroop and Ors. v Moolchand and Ors. AIR 1983 Supreme Court 355. 3. MR. AIR 1962 Patna 285 (FB) Basiruddin khawaja Mohiuddin v Binraj Murlidhar and Ors. AIR 1987 BOMBAY 235: S. B. Saigal v Smt. Vidya Vijan AIR 1978 Allahabad 82: Lt. Col. S. K. Kashyap and ors, v State of Rajasthan AIR 1971 Supreme Court 1120 and Bhagwan swaroop and Ors. v Moolchand and Ors. AIR 1983 Supreme Court 355. 3. MR. Mukherjee learned counsel appearing on behalf of the opposite party No. 1 however, contends inter alia, that in the present case Article 137 of the Limitation Act would apply which means that the petitioner has to make an application for making the preliminary mortgage decree final within three years from the date of passing of the preliminary decree and as the decree had thus become time barred even during the life time of the original defendant since deceased, who died in the year 1987 due to the non-filling of the application by the plaintiff to make the preliminary decree final within the statutory period, the application for substitution filed by the plaintiff-petitioner on the death of the original defendant was not maintainable, since right to sue in the present case did not survive after the death of the original defendant. Further, since no ad-interim injunction or stay was granted in the Order IX Rule 13 proceeding pendency of such proceeding would not extend the period of limitation under Article 137 of the Limitation Act in any way. 4. IN the present case, Article 136 of the Limitation Act 1963 would not apply at all, because the question of execution of any decree is not involved in the matter till now, but at the same time, it cannot be said that no period of limitation" would apply to the facts of the present case. In the present case, the plaintiff filed a suit for recovery of money from the defendant which she had taken as a loan by mortgaging properties, and the plaintiff got an order of attachment of immovable properties in the said quit, in which the disputed preliminary decree was passed. It was certainly the duty of the plaintiff to make an application for making the preliminary decree final, so that an order for sale of the attached properties could be passed by the Court, since the defendant had failed to pay off the decretal dues within the period as mentioned in the preliminary decree. It was certainly the duty of the plaintiff to make an application for making the preliminary decree final, so that an order for sale of the attached properties could be passed by the Court, since the defendant had failed to pay off the decretal dues within the period as mentioned in the preliminary decree. Since no period of limitation for making such application is provided in the Limitation Act, 1968 the residuary Article namely Article 137 thereof shall apply and hence such an application had to be made within the period of three years, when the right to apply accrued, as prescribed in Article 137 of the Limitation Act, 1963. We also got support on this point from the Division Bench decision of the Mysore high Court in the case of Gajanan Chintaman Deshpande and others v karnatak Glass Industries and others, AIR 1971 Mysore, 141; which was a case under the. Limitation Act, 1908 and wherein it was held inter alia, that article 181 of the Limitation Act, 1908 would apply in such case. It is to be noted that the said Article 181 corresponds to Article 137 of the Limitation act, 1963. In the present case, the right to apply for final decree accrued with the expiry of the period regarding payment of money, as specified in the preliminary decree and application was to be made by the plaintiff for making the preliminary decree final within three years from the date of expiry of such period, and if no such application was made, as per the provisions of Article 137 of the Limitation Act, 1963, the preliminary decree would become inexcutable, and the suit would come to an end, as it had happened in the present case, inasmuch as, thought the preliminary decree was passed in the year 1980, no application was made by the plaintiff-petitioner for making the said preliminary decree final within the said period of limitation at all, and thus, with the expiry of the said period, the suit had come to an end. The same principle of law shall also apply in a suit for foreclosure. The decisions cited try Mr. The same principle of law shall also apply in a suit for foreclosure. The decisions cited try Mr. Bhattacharyya, however, were mostly in respect of suits for redemption of mortgage wherein no period of limitation would be attracted after a preliminary decree was passed, but in the present case, the plaintiff had not filed a suit for redemption of mortgage, so that Article 137 of the Limitation Act, 1963 would not apply. Moreover, the said decisions are distinguishable on facts also. Accordingly, the decisions cited by Mir. Bhattacharyya in support of his arguments would be of no help to him. 5. SECONDLY, since, the sole defendant died after passing of the preliminary decree in the present case, 'order XXII Rule 4 of the Code of civil Procedure would not be attracted ;and the provisions of Order XXII rule 10 of the Code and/or Order 1 Rule 10 thereof would apply, for which no period of limitation is prescribed. Reference may be made to the division Bench decision of this Hon'ble Court in the case of Bindu Basini mistri and Ors. V. Provabati Mistri 1981 (1) CLJ 68 and the decision of the privy Council in Lechmi Narein Marwari v Balmukund Marwari L. R. 51 indian Appeals 321 and also Babuio Shanti Devi v Khodai Prosad Singh and others AIR 1942 Patna 340. At the same time, however, one should not forget that such an application has to be made in a pending suit or proceeding. So, even if the application for substitution filed by the plaintiff-petitioner be deemed to be an application under Order XXII Rule 10 or one under Order I Rule 10 of the Code of Civil Procedure, that would also not give the petitioner any relief, inasmuch as, with the expiry of three years from the date of passing of the preliminary decree in 1980 or the time to pay off the decretal dues, within which period the plaintiff did not make any application for making the preliminary decree had become inexcutable and the suit had also come to an end, and as such, the application for substitution and/or addition filed in the Court below, in the present case, could not be said to have been filed in any pending suit or proceeding on the date of its filing in the year 1987. 6. 6. LASTLY, pendency of any proceeding, including a proceeding under order IX Rule 13 of the Code of Civil Procedure, in which no ad-interim order of stay or injunction was granted, would not extend the period of limitation, inasmuch as, the right to make an application for final decree accrues on the date when the period for payment of money as fixed in the preliminary decree expires, and whenever time had commenced running, it was not be suspended by reason of pendency of any proceeding without any prohibitory or restraint order. Reference may be made to the decision in the case of Shiva Ramulu v Shernappa ILR (1957) Andhra Pradesh 159. Thus we are not inclined to interfere with the impugned order in revision. The Civil Order accordingly stands dismissed without any order as to costs. Revision Application Dismissed.