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2006 DIGILAW 2556 (MAD)

Mahaeswaran v. Mariammal

2006-09-26

K.VENKATARAMAN

body2006
Judgment : 1. This Civil Revision Petition is directed against the order of the learned District Munsif, Thanjavur dated 21.3.2003 made in I.A. No. 634 of 2002 in O.S. No. 971 of 1986. 2. The first respondent herein, who is the first plaintiff in the Suit, has filed I.A. No. 634 of 2002 before the District Munsif, Thanjavur to condone the delay of 2298 days in filing the final decree Petition. The said Application has been allowed by the Trial Judge on 21.3.2003. The same is under challenge in this Revision. 3. The first respondent has stated in her Application filed before the Trial Court that the Suit in O.S. No. 971 of 1986 was decreed on 3.11.1992 and she has filed an Application for passing final decree on 21.9.1993. Meanwhile, the petitioners/defendants filed a Petition in I.A. No. 1329 of 1993 praying to set aside the preliminary decree dated 3.11.1992. The said I.A. was allowed on payment of cost. Since the cost has not been paid, I.A. No. 1329 of 1993 was dismissed on 10.11.1994. Thereafter, another Application to restore I.A. No. 1329 of 1993 was filed with an Application to condone the delay of 101 days. Thereafter, according to the case of the first respondent, her son, the second plaintiff died on 12.9.1999. Hence, due to the above referred reason, she could not pursue her Application for final decree. Thus, the present Application has been filed to condone the delay of 2298 days in preferring the final decree proceedings. 4. The petitioners herein, who were the respondents in I.A. No. 634 of 2002, filed a detailed counter opposing the said Application. The learned District Munsif, Thanjavur by his order dated 21.3.2003 allowed the said Application. While doing so, the learned Trial Judge has held that the first respondent being a woman aged about 60 years and in the interest of justice, the Application to condone the delay in preferring the Application for final decree proceedings has to be allowed. But, unfortunately, the learned Trial Judge did not discuss about the merits of the Application or whether the Application is barred by limitation or not. 5. The learned counsel for the petitioners vehemently contended that the period of limitation for preferring final decree proceedings is within three years as per Article 137 of the Limitation Act, 1963 and hence the delay of 2283 days should not have been condoned. 5. The learned counsel for the petitioners vehemently contended that the period of limitation for preferring final decree proceedings is within three years as per Article 137 of the Limitation Act, 1963 and hence the delay of 2283 days should not have been condoned. I am unable to accept the contention of the learned counsel for the petitioners for more than one reason. 6. First of all, the present Application is to condone the delay in filing the Application for final decree proceedings. In such Application, the Court has to see whether any sufficient cause has been shown for not filing the Application within time. Though the Court below did not discuss about the merits, of the matter, it has stated that the first respondent is a woman aged about 60 years and she wanted to redeem the property. Further, the Court below stated that it is after all her property which she wants to redeem the same. It is seen that the first respondent was aged about 60 years at the time of filing of the Application in the year 2002 and she will be now 64 years old. She has averred in the Application to condone delay that the petitioners herein have filed the application to set aside the ex parte preliminary decree and the same was pending for long time. Further she has stated that her son, the second plaintiff, died in harness and she was mentally depressed. Taking note of the same, I fully agree that the first respondent herein was prevented by sufficient cause in not preferring the Application within a reasonable time. 7. Secondly, I am unable to accept the argument of the learned counsel for the petitioners, that a period of 3 years has been prescribed under Article 137 of the Limitation Act for preferring the final decree proceedings, in view of the decision of the Honourable Apex Court in Achaldas Durgaji Oswal v. Ramvilas Gangabisan Hoda, 2003 (1) CTC 364 : 2003 (1) LW 797, wherein it has been held as follows: “ 10. The right of the mortgagor, it is now well-settled, to deal with the mortgaged property as well as the limitation to which it is subject depends upon the nature of his ownership which is not absolute, but qualified by reason of the right of the mortgagee to recover his money out of the proceedings. The right of the mortgagor, it is now well-settled, to deal with the mortgaged property as well as the limitation to which it is subject depends upon the nature of his ownership which is not absolute, but qualified by reason of the right of the mortgagee to recover his money out of the proceedings. The right to redeem the mortgage is a very valuable right possessed by the mortgagor. Such a right to redeem the mortgage can be exercised before it is foreclosed or the estate is sold. The equitable right of redemption is dependent on the mortgagor giving the mortgagee reasonable notice of his intention to redeem, and on his fully performing his obligations under the mortgage. .......... 16. The question which falls for consideration in this appeal must be considered keeping in view the statutory right of the mortgagor in terms of Section 60 of the Transfer of Property Act. By reason of Article 61 of the Limitation Act, 1963, the limitation provided for a suit to redeem or recover the possession of immovable property mortgaged by a mortgagor is thirty years from the date of accrual of right to redeem or recover possession. Article 137 which is a residuary provision provides for limitation of three years in a case where no period of limitation is provided.” Thus, the above said decision makes it very clear that the present Application is not barred by limitation. 8. The learned counsel appearing for the petitioners cited the decision in State Bank of India v. Kasim, 1999 (3) CTC 109 and contended that the period prescribed for preferring the final decree proceedings is 3 years from the date of expiry of the period mentioned in the preliminary decree proceedings. Thus, according to the learned counsel for the petitioners, Article 137 of the Limitation Act has to be applied. 9. I am unable to accept the said contention of the learned counsel for the petitioners. As has been held by the Supreme Court in the decision referred to above, it is clear that Article 137 of the Limitation Act will not be applicable to the case on hand. Further, the decision cited by the learned counsel for the petitioners will not be applicable to the facts and circumstances of the case on hand. 10. As has been held by the Supreme Court in the decision referred to above, it is clear that Article 137 of the Limitation Act will not be applicable to the case on hand. Further, the decision cited by the learned counsel for the petitioners will not be applicable to the facts and circumstances of the case on hand. 10. In the result, the fair and decretal, order of the learned District Munsif, Dindigul in I.A. No. 634 of 2002 in O.S. No. 971 of 1986 dated 21.3.2003 is confirmed and the Civil Revision Petition is dismissed. However, there is no order as to costs. Since the final decree Application is pending for a long time and also in view of the fact that the first respondent is a woman aged about 64 years, I deem it necessary to direct the learned District Munsif, Thanjavur to dispose of the said Application within three months from the date of receipt of copy of this order or production of the same.