- (1.) This is a defendant s appeal against a final decree in a mortgage suit passed by the Court below under Order 34, Rule 5, Civil P.C., and the so e question for consideration in the case is whether or not the application for the preparation of the final decree presented by the plaintiffs-respondents in the Court below was barred by limitation. The Court below overruled the plea of limitation raised by the defendant and held that "under the peculiar circumstances of this case" the application was within time.
(2.) The Court below was right in observing that the circumstances that led to the application for the preparation of the final decree filed by the plaintiffs were "peculiar," but this fact, in our judgment, was no justification for adding to or supplementing the provisions of the Indian Limitation Act as regards the computation of the period of limitation prescribed for such an application by that Act, as the Court below has done. The facts are undisputed and are as follows : On 5th September 1916, a decree for sale in terms of a compromise entered into by the parties was passed in favour of the plaintiffs against the defendant. The compromise that was embodied in the decree provided that the defendant: will pay the entire amount claimed and the coats of the suit, with an instalmsutary payment of Rs. 1,000 a year with interest at the rate of 6 annas per cent per mensem. In case a default is made in respect of two consecutive instalments, the entire decretal amount will be paid in a lump sum with interest at the rate of 8 annas per cent per mensem. The plaintiffs will be entitled to get the entire property sought to be sold by auction noted in the petition of plaint, sold by auction.... The first instalment will stand payable on 21st July 1917, and in the same way each instalment will fall due on 31st July of every year until the entire decretal amount is paid. Hence it is prayed that decree under Order 34, Rule 4, may be passed with the above mentioned instalmentary payment and conditions.
(3.) Some of the instalments were duly paid by the defendant but default was made in the payment of the instalments that fell due on 31st July 1924, and 31st July 1925, and thus, in accordance with the terms of the com promise decree, the entire remaining decretal amount became payable in a lump sum on 31st July 1925. The plaintiff-decree-holders then filed an application for execution of the decree on 6th July 1927. The defendant-appellant objected to the application for execution, inter alia, on the ground that that compromise decree, being a preliminary decree for sale, was not capable of execution, and that the plaintiffs-decree-holders could not apply for execution without having a final decree prepared. On 22nd March 1928, the execution Court over-ruled the objection preferred by the appellant but, on appeal, this Court on 25th July 1929, gave effect to the objection of the defendant-appellant and dismissed the application for execution. This Court held that the decree passed in terms of the compromise was a decree under Order 34, Rule 4, Civil P.C., and: The decree-holders therefore were obliged to apply for a final decree before they can proceed to execution and they were debarred from making an application for sale in an execution Court.;