N.K.KAPOOR, J. - (1.) THIS is plaintiff s regular second appeal against the judgment and decree of the Additional District Judge, Bathinda, whereby the decree passed by the trial Court was set aside, thus dismissing the application filed by the plaintiff for passing of final decree.
(2.) BRIEFLY put, applicant plaintiff filed a suit for possession by way of redemption of land measuring 35 Kanals 10 Marias situated at Village Nathpura on payment of Rs. 3400/ (mortgage money ). A preliminary decree was passed on 20. 11. 1968. The mortgage amount was deposited by the applicant-plaintiff on 10. 12. 1968. The appeal filed by the judgment debtor was dismissed on 4. 9. 1974 by the District Judge, Bathinda, and on further appeal this Court remanded the case to the Additional District Judge for fresh decision on merit. The learned Additional District Judge on reconsideration of the mater dismissed the appeal vide judgment and decree dated 8. 12. 1983. The appeal filed against this judgment and decree was dismissed by this Court on 15. 3. 198 in limine. It is thereafter that the application for passing of final decree was filed by the plaintiff which claim was allowed by the Sub-Judge vide judgment and decree dated 27. 11. 1986. Before the appellate Court, it was urged by the appellant that second application for passing of the final decree is not maintainable under law. The lower appellate Court on reconsidering the matter came to the conclusion that the second application for final decree was not maintainable and that the same was barred by time. Consequently the appeal was allowed thereby declining the plaintiffs prayer for passing of final decree. Factual aspects broadly noticed are not in dispute. Learned counsel for the appellant has, however, urged that the finding recorded by the lower appellate Court with regard to the maintainability of the so called second application and its dismissal on the ground of limitation is unsustainable in law. Even otherwise, the lower appellate Court has erred in law in not properly perusing the material evidence on record which has consequently led to passing of wholly unsustainable order. Elaborating the counsel drew my attention to the order passed by the Sub-Judge on 3. 8. 1984 permitting the applicant-plaintiff to file a fresh application which reads as under: "it is conceded that some of the persons against whom the application has been filed were dead at the time of filing of application. The counsel for the applicants wants to file a fresh application after impleading L. Rs. of deceased. As such this application is filed.
(3.) AS regards non suiting of the plaintiff on the ground of limitation, the counsel urged that the defendant's appeal was dismissed by the High Court on 15. 3. 1984. Since it is settled law that decree of the trial Court merges in the decree of the appellate Court and it is only the appellate decree which is to be executed, limitation for passing of the final decree ought to have been taken from the order passed by the High Court on 15. 3. 1984. Examined so, the application filed by the plaintiff for passing of the final decree is within limitation.;