Jane Andrew v. State Bank of Travancore — 1998 DIGILAW 267 (KER)

Judgment :- S. Sankarasubban, J. This revision petition is filed by defendants 2 and 6 in O.S.227 of 1981 on the file of the Additional Sub Court, Kollam. The plaintiff in the suit is State Bank of Travancore, Sakthikulangara Branch, Kollam. The suit was filed for recovery of money on the basis of a mortgage. A preliminary decree was passed by the trial Court as follows: "In the result, a preliminary decree is passed on the following terms: An account of the amounts due to the plaintiff under plaint accounts 1 to 9 as on the date of preliminary decree by way of principal and interest, costs of the suit, charges and other expenses shall be taken by appointing a Chartered Accountant of the Courts choice. On passing a final decree declaring the amount due to the plaintiff, within 6 months, the defendants shall pay into court the sum declared with subsequent interest at the rates specified in the plaint and subsequent costs, charges and expenses till the date of deposit. In case the defendant fail to do so, the plaintiff shall be entitled to apply for sale of the equitably mortgaged plaint C and D schedule items or sufficient parts there of or the plaint A and B Schedule i terns or all the items referred to earlier and the proceeds of sale (after deducting therefrom the expenses of sale) shall be paid into court and applied in payment of all the aforesaid sums together with subsequent costs, charges, expenses and interest (interest at the rates specified in the plaint for the plaint accounts 1 to 9). As per the preliminary decree, an account of the amounts due to the plaintiff under plaint accounts 1 to 9 as on the date of the preliminary decree by way of principal and interest, costs of the suit, charges and other expenses shall be taken by appointing a Chartered Accountant of the Court's choice. According to the learned Sub Judge, because of the serious dispute with regard to the accounts produced by the plaintiff it was necessary that an independent Chartered Accountant should check up the accounts. Hence in the preliminary decree, the actual amount that was due from the defendants was not stipulated. But a direction was made in the decree that the account should be audited by a Chartered Accountant of the Court's choice. Hence in the preliminary decree, the actual amount that was due from the defendants was not stipulated. But a direction was made in the decree that the account should be audited by a Chartered Accountant of the Court's choice. This preliminary decree was passed on November 21,1988. I.A. No. 1284 of 1992 was filed by the Bank for appointing an Auditor to arrive at the amount to be paid by the defendants. This petition was filed under S.151 of the Code of Civil Procedure and the I.A. was filed nearly four years after the preliminary decree was passed. Defendants 2 and 6 filed objections to the application for appointment of the Chartered Accountant. According to them, the present application amounts to an application for passing a final decree and it should have been filed within three years from the date of the preliminary decree. Even it is not an application for passing final decree, the right was accrued to the plaintiff to get a Chartered Accountant appointed on the date of the passing of the preliminary decree. But, since three years had passed, the application is barred by limitation. The learned Sub Judge after hearing both sides, came to the conclusion that it is not an application for passing a final decree; but it is an application leading to the passing of the final decree, and hence there is no bar of limitation. Further it took the view that as a matter of fact, the court should have appointed the Chartered Accountant and the party should not be blamed for the fault of the Court. Thus the interlocutory application was allowed. It is against this, the present revision is filed. 2. Sri. Stanley Fernandez, learned counsel appearing for the petitioners, submitted that a plaintiff cannot sleep over his rights and file a petition as and when he likes. The time limit for passing a final decree in a mortgage suit is three years and that period was over when the present I.A. was filed. Learned counsel submitted that a defendant cannot be allowed to suffer for the fault committed either by the Court or by the plaintiff. He further submitted that under Art.137 any application for which no period has been prescribed has to be filed within three years when the right to sue accrued. Learned counsel submitted that a defendant cannot be allowed to suffer for the fault committed either by the Court or by the plaintiff. He further submitted that under Art.137 any application for which no period has been prescribed has to be filed within three years when the right to sue accrued. Here the right accrued when the preliminary decree was passed and admittedly the period of three years has lapsed after the preliminary decree. Hence the application was barred by limitation. 3. Learned Senior Counsel Sri. K.C. John appearing for the bank first respondent contended that normally a preliminary decree will indicate the amount to be paid by the defendants. The right to pass a final decree arise only if the defendant does not pay that amount within six months from the date of the decree. But in the present case, the Subordinate Judge's Court instead of passing the usual preliminary decree directed that the specific amounts are to be ascertained by the Chartered Accountant and as per the decree, the defendants were given six months time after ascertainment of the amount for payment of the same. Counsel submitted that the suit is pending and in a pending suit, an application can be made and there is no bar of limitation for such an application. Further he submitted that the Court ought to have appointed a Chartered Accountant for the purpose of ascertaining the amount. But, since it was not done by the Court, the present application was filed by the bank to remind the Court of the direction given in the preliminary decree. Learned counsel also relied on the decision of the Madras High Court in Sivan Filial v. Anbayyan,1976 (1) MLJ 385, and also the decisions of the Allahabad High Court in Ghulam Amir v. Masuda Khatun, AIR (3) 1943 Allahabad 321. 4. It is true that the preliminary decree passed by the Court below is not in accordance with the 'preliminary decree' prescribed under the Code of Civil Procedure. But, that does not take away the remedy of the decree holder to enforce the decree. Normally in a preliminary decree for sale the amount due to be paid by the mortgagor will be ascertained and the decree itself will provide a time of six months for payment of the amount. If the amount is not paid, then the decree holder can apply for passing of final decree. Normally in a preliminary decree for sale the amount due to be paid by the mortgagor will be ascertained and the decree itself will provide a time of six months for payment of the amount. If the amount is not paid, then the decree holder can apply for passing of final decree. The time limit for filing an application for final decree is under Art.137, of the Limitation Act, ie., within three years from the date when the defendant was directed to deposit the amount. Thus, the plaintiff can make an application for final decree if the mortgagor does not pay the amount as per the decree. The accrual of right for passing final decree arises only after that. In this case, the preliminary decree does not stipulate the amount. On the other hand, it stated that the amount should be ascertained by the Chartered Accountant. The application was filed by the plaintiff to appoint a Chartered Accountant. This application cannot be said to be an application for passing a final decree because an application for passing of a final decree for sale can be passed only if the mortgagor fails to deposit the amount shown in the preliminary decree. By the passing of the preliminary decree, the suit will not come to an end. It is pending. Hence one cannot say that in a pending suit an application like the present one cannot be filed. A question similar to the present one arose in the decision reported in Ramananthan Chetty v. Alagappa Chetty (1930) ILR 53 Madras 378. That was a case of dissolution of partnership. A final decree for dissolution of partnership was passed, which included the following clause: "As the first defendant has always been the managing partner and he has been instituting suits for recovery of all outs landings etc., the good outs landings due to the firm as found in the Commissioner's report will be taken by him and he will account to the partners for the same." This final decree was passed on March 22,1915. An application consequent to the direction in the final decree was made by the sixth defendant, son of one of the partners, only on October 14, 1925, ie. nearly ten years after the final decree. An application consequent to the direction in the final decree was made by the sixth defendant, son of one of the partners, only on October 14, 1925, ie. nearly ten years after the final decree. The question argued was whether this direction amounted to preliminary decree and if it is so, whether it is barred under Art.181 of the old Limitation Act. The learned judge agreeing with the trial court held that the direction was of an interlocutory character in the final decree stage and that it is not subject to the law of limitation. The Court held as follows: "II is clear to me that the suit continues for some purposes at least until the final decree; it would indeed be an anomaly if any decree could be reached by proceedings other than a suit. That being so, I have been shown no authority for the view that an application in a pending suit desiring the Court to proceed to judgment is governed by any rule of limitation". The learned single judge who gave the judgment relied on the decision of the Calcutta High Court in Kedarnath Duti v. Harm Chand Dull (1), (1882) ILR 8 Calcutta 420. In that case, a decree was passed directing a commission to effect partition. No effective steps were taken for ten years, when the plaintiff applied for proceedings to continue. That petition was met with the plea of limitation. Wilson, J. held that, the application being one in a pending suit, the right to apply was a right which accrues from day to day and, therefore, it was not barred by lapse of time. The Court also took into account the Full Bench decision of the Calcutta High Court in Puran Chand v. Roy Radha Kishan, (1891) ILR 19 Calcutta 132. In that case, it was held that where the decree provided that mesne profits should be ascertained in the execution department, no rule of limitation attached to an application to ascertain them. It was held by the Court thus: "There is nothing in the Code compelling a person having the conduct of a pending suit to make formal applications from time to time, asking the court to proceed to judgment". In Ghulam Amir v. Masuda Khatun, AIR (3) 1943 Allahabad 321, the preliminary decree did not indicate the amount to be paid and the time for payment of the amount. In Ghulam Amir v. Masuda Khatun, AIR (3) 1943 Allahabad 321, the preliminary decree did not indicate the amount to be paid and the time for payment of the amount. Those places were left blank. The question arose whether the application for final decree was barred by limitation. The Allahabad High Court held thus:- " A decree-holder can apply for a final decree only when there has been a default on the part of the j judgment-debtor in the payment of the amount specified in the preliminary decree by the date specified therein. Where no amount is specified and no date is fixed it is not possible for the decree-holder to say that there has been a default by the judgment-debtor in payment as directed by the decree. In these circumstances time never begins to run against the decree-holder under Art.181 for the making of an application for the preparation of a final decree". In Sivan Filial v. Anbayyan,1976 (1) MLJ 385, Ismail, J. (as he then was) had to consider a similar question. The suit was to enforce a mortgage and the preliminary decree was passed on January 30,1958. An application was filed as LA. 126 of 1969 for the passing of the final decree for sale. The amount decreed had not been paid by the respondents. The respondents contended that since the preliminary decree was passed on January 30.1958 and since the application in I. A. No. 126 of 1969 was filed after the expiry of three years from the date of the decree, the application was barred by limitation. In dealing with this question, the Court held that under the rules of 0. 34, the Court is bound to fix a date within the outer limit of six months for the mortgagor to pay the amount in question. The Court's failure to do so cannot mean that the time begins to run from the date of the decree itself. In dealing with this question, the Court observed thus: "If the Court failed to discharge its duty, the general principle is that no litigant should suffer as a consequence of the failure of the Court or the mistake committed by the Court". In'Broom's Legal Maxim, Tenth Edition', at page 73, it is stated that an act of the Court shall prejudice no man -'Actus Curiae Neminem Gravabit'. In'Broom's Legal Maxim, Tenth Edition', at page 73, it is stated that an act of the Court shall prejudice no man -'Actus Curiae Neminem Gravabit'. This maxim is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law. "it has been observed, that as long as there remains a necessity, in any stage of the proceedings i n an action, for an appeal to the authority of the Court, or any occasion to call upon it to exercise its jurisdiction, the Court has, even if there has been some express arrangement between the parties, an undoubted right, and is moreover, bound to interfere, if i t perceives that its own process or jurisdiction is about to be used for purposes which are not consistent with justice." In Madhavi Amma v. Lookkose, 1977 KLT 279, the question arose whether the death of a party after the preliminary decree was passed results in abatement. In dealing with the question, the Court relied on certain decisions, which were of the view that when a decree was passed, the parties have acquired certain rights and those rights should not be taken away unless the Court on appeal set aside or varies the decree. In that decision, this Court quoted the observation made by Beaumont, C. J. in the decision in Dawarali Jafarali Saiyad v. Bai Jadi, AIR 1940 Bombay 418, which is as follows: "Now where a preliminary decree has been passed, i t seems to me that i t is quite appropriate to talk about the right to use surviving. The rights of the parties are crystallised by the preliminary decree. The mortgage is established, the mortgagor has a right to redeem, and in default the mortgagee is given certain rights. It is no longer open to the plaintiff to sue in respect of his original cause of action; all he can do is to enforce his rights under the preliminary decree. No doubt, an application for a final decree is not technically an application in execution of the preliminary-decree, but i t is certainly not an application in result of the original right to sue. No doubt, an application for a final decree is not technically an application in execution of the preliminary-decree, but i t is certainly not an application in result of the original right to sue. It is an application to enforce the rights under the preliminary decree, and though the suit may be continued for that purpose, it seems to me inappropriate to refer to the right to sue as either surviving or not surviving". Hence, ongoing through the above decisions, I am of the view that it is a case where the suit should be deemed to be pending because something had to be done on the preliminary decree to make it complete. As a matter of fact, it was a duty of the Court to have appointed a Chartered Accountant without even an application by the party. Hence, the application cannot be said to be barred by limitation. In the above view of the matter, I dismiss the Civil Revision Petition.