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2002 DIGILAW 610 (MAD)

R. Dorathy v. Thangayyan Josephraj and others

2002-07-12

PRABHA SRIDEVAN

body2002
JUDGMENT: The opening lines of the judgment of the First Bench of this Court in A.A.O. No.173 of 1969 on 16.7.1975 with regard to the subject matter of the appeal can be repeated today. “This is an unfortunate litigation which is dragged on for merely a quarter of a century and still there is no immediate prospect of its coming to a satisfactory end.” This appeal arises out of an order passed in an application under Sec.30 of the Land Acquisition Act. 2. The appellants are the claimants. Their claim was resisted by the second respondent on the ground that he had obtained a preliminary decree in a suit for recovery of amounts due on a mortgage and therefore, Sec.73(2) of the Transfer of Property Act would apply and he is entitled to lay his claim on the compensation money. The appellant objected to this on two grounds; one was that after the preliminary decree no effort had been taken by the respondent to obtain a final decree and therefore, the right to execute the mortgage decree had become barred and secondly, once the mortgagor’s right to foreclose had culminated in a decree, he was no longer a mortgagee but a decree holder and therefore, Sec.73 of the Transfer of Property Act would not apply. Both these objections did not find favour with the learned Subordinate Judge. The appeal has been filed by the claimants. 3. Though all the respondents have been served none have chosen to appear. In fact, the second respondent had also died and the legal representatives were put on notice of the pending proceedings. All the communication sent privately by registered post and through Court have returned unserved. Therefore, SS notice was effected by affixture on Court notice-board and last known address and the notice was treated as complete and the matter was taken up for hearing. 4. Mr.K.N.Thambi, learned counsel for the appellant would submit that the mortgage was of the year 1932, 1107 ME. The suit on mortgage was filed in 1950, O.S. No.67 of 1950 and a preliminary decree was passed on 30.3.1952. According to the learned counsel till date no final decree was passed. 4. Mr.K.N.Thambi, learned counsel for the appellant would submit that the mortgage was of the year 1932, 1107 ME. The suit on mortgage was filed in 1950, O.S. No.67 of 1950 and a preliminary decree was passed on 30.3.1952. According to the learned counsel till date no final decree was passed. However, the lower Court relying on Sivan Pillai v. Anbayyan, (1976)1 M.L.J. 385 : 89 L.W. 449, held that though final decree has not been passed the property should be deemed as mortgaged property and the right of the mortgagor to claim the compensation in respect of the mortgaged property which had been acquired under the Land Acquisition Act must be deemed to subsist. 5. The lower Court also relied on the order dated 18.10.1963 in A.A.O. No.36 of 1966 of this Court wherein it was held that after the merger of the Kanyakumari District with the State of Madras and the extension of the provision of Civil Procedure Code to that area no mortgage decree can be executed unless and until a final decree is passed. 6. But subsequently, there was the order in A.A.O. No.170 of 1963 referred to above from which the history of this case is made clear. An ex parte preliminary mortgage decree was granted in favour of the second respondent herein (now deceased) who was the plaintiff, for recovery of a sum of Rs.3,100 towards mortgage money and a sum of Rs.9,491 towards arrears of lease amount together with interest. A number of execution petitions were filed but none of them were really pursued. E.P. No.71 of 1966 was filed and this too was dismissed. An appeal was filed against the order of the Court dismissing the execution petition. A receiver appears to have been appointed for the property in the mean time. When the execution petition was pending a petition was filed for discharge of the receiver. The receiver had also deposited some money in Court, which the decree holder had also withdrawn. The Division Bench in the above appeal against order (A.A.O.) also held that it is not possible to hold that the mortgage decree cannot be executed because it had become barred by limitation. The receiver had also deposited some money in Court, which the decree holder had also withdrawn. The Division Bench in the above appeal against order (A.A.O.) also held that it is not possible to hold that the mortgage decree cannot be executed because it had become barred by limitation. However, it was declared that all that remains is for the plaintiff (the second respondent herein) to apply for a final decree and in the full decree proceedings, the judgment debtors will be entitled to urge all defences available to them under law and also that the money deposited by the receiver and drawn by the plaintiff will be appropriated towards payment of the lease amount. The order in this A.A.O. is dated 16.7.1975 and the judgment impugned in this appeal is dated 16.2.1987, just about 12 years have lapsed. Inspite of this, the second respondent had not chosen to file an application for obtaining a final decree till date. 7. In State Bank of India v. Kasim, (1999)3 C.T.C. 109 , this Court had an occasion to deal with the question of limitation in an application filed for final decree proceedings. In that case a preliminary decree was passed in a suit for mortgage on 29.10.1982. The preliminary decree granted three months time to pay the decree amount and thereafter liberty was given to proceed with the final decree proceedings. An application filed beyond a period of three years from the date of expiry of three months from 29.10.1982 was held to be barred by limitation and not maintainable. The learned Judge had referred to various decisions especially Kumbakonam Municipal Council v. Poonachi, (1980)2 M.L.J. 378 in which there was reference to Sivan Pillai v. Anbayyan, (1976)1 M.L.J. 385 : 89 L.W. 449. Sivan Pillai’s case, also arose out of a suit to enforce a mortgage and a preliminary decree was passed on 30th January, 1958. Thereafter, an interlocutory application was filed by the appellant purporting to be under O.34 Rule 5, C.P.C. for passing a final decree. An objection was raised to that, since the preliminary decree was passed on 30th January, 1958 and no application had been filed three years from the date of the preliminary decree, the application for final decree filed in 1969 was barred by limitation. The Courts below accepted this contention. An objection was raised to that, since the preliminary decree was passed on 30th January, 1958 and no application had been filed three years from the date of the preliminary decree, the application for final decree filed in 1969 was barred by limitation. The Courts below accepted this contention. But this Court held that the application for the passing of the final decree was not belated, since the preliminary decree was not in accordance with the provisions contained in O.34, C.P.C., for no time limit was fixed for payment of the amount. Therefore, it was held that an omission by the Court to do its duty cannot prejudice a litigant. In (1980)2 M.L.J. 378 , it was held that on facts the ratio in Sivan Pillai’s case did not apply and that when a preliminary decree contemplated the filing of an application by the petitioner in default of payment within a time prescribed, then the right to apply for the final decree accrued on the date when the payment was not made as provided for under the decree and that if this right is not asserted within time, the application can rightly be rejected as belated. Following this, the learned Judge in (1999)3 C.T.C. 109 held that the plaintiff’s final decree applications was belated and that he had lost his right over the mortgage security. 8. This case, though not strictly identical is similar. Hear a decree was passed in the mortgage suit but it was not a preliminary decree in accordance with O.34, C.P.C., but in the form according to Travancore Civil Court Guide. Only after the merger of Kanyakumari District with the then Madras State in 1.11.1956 the provisions of C.P.C., were extended to the District and so in the earlier proceedings this Court held that the execution proceedings cannot be held to be barred by time, because the earlier decree was not one in accordance with O.34, C.P.C., in that no time was fixed for payment of the decree amount. 9. But after the Division Bench judgment in A.A.O. No.173 of 1969 the position changed. In that judgment, the learned Judges of this Court after holding that the application of final decree was not barred by time gave the mortgagee the right to apply for final decree and also to appropriate the amounts collected by the receiver and drawn by him towards the lease amount. In that judgment, the learned Judges of this Court after holding that the application of final decree was not barred by time gave the mortgagee the right to apply for final decree and also to appropriate the amounts collected by the receiver and drawn by him towards the lease amount. Even thereafter he did not file any application for final decree and eleven years had expired when the order in L.A.O.P. was passed. The second respondent herein has lost his right to apply for final decree since he had not done so within three years from the date on which this Court had given him time to apply for final decree. The Court below labours under the disconception that this right is alive forever. 10. In Hameed Joharan v. Abdul Salam, (2001)7 S.C.C. 573 , the Supreme Court dealt with the question whether the limitation period runs from the date of final decree when the rights stand crystallized or does limitation stop for the parties to furnish the stamp papers for drawing up the decree for partition. The Supreme Court held that the legislature cannot be made to subservient to any personal whim or caprice and the delay by parties in furnishing stamp paper for drawing up decree of partition cannot put under suspension, legislative mandate regarding period of limitation for enforcement of decree. In that connection, the Supreme Court referred to the judgment reported in Overseas Aviation Engg. (GB) Ltd. Re, All E.R. 16E - 1, wherein Lord Denning held that, “The word ‘execution’ means, quite simply, the process for enforcing or giving effect to the judgment of the Court; and it is ‘completed’ when the judgment-creditor gets the money or other thing awarded to him by the judgment......” “It cannot but be the general policy of law to use legal diligence and this has been the consistent legal theory from ancient times: even the doctrine of prescription in Roman Law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law Courts never tolerate an indolent litigant since delay defeats equity - the Latin maxin vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right.” 11. Law Courts never tolerate an indolent litigant since delay defeats equity - the Latin maxin vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right.” 11. Therefore, any right that the second respondent may have had in applying for final decree has been forfeited by the lapse of time. It will be neither just, lawful nor equitable to ask the appellant to wait endlessly until the second respondent wakes up to file a time barred application for final decree. The judgment and decree of the Court below is set aside and the appeal is allowed. No costs.