MILAP CHANDRA, J. - (1.) THIS revision petition has been filed against the order of the learned Additional District Judge No. 2, Jodhpur dated January 24. 1989 by which he allowed the application of the plainff-non-petitioner moved under order 34 Rule 5 (3), C. P. C. for passing final decree for sale and dismissed the objection of the defendant-petitioners that the said application is time barred. The facts of the case giving rise to this revision petition may be summarised thus.
(2.) THE plaintiff-respondent filed a suit for the recovery of Rs. 1,36,000/-on the basis of equitable mortgage. A preliminary decree was passed on Sept-ember 10, 1983. An application for passing final decree was moved on March 26. 1987. THE defendant-petitioners raised an objection that the application for passing final decree is barred by limitation as it has been moved after three years of the passing of the preliminary decree. After hearing the parties, the learned trial court allowed the application of the plaintff-non-petitioner and dismissed the objection of the defendant-petitioners by its order under revision. It has been contended by the learned counsel for the defendant-patiti-oners that the trial court has acted illegally in the exercise of its jurisdiction in holding that the period of limitation for moving such an application has not as yet commenced as an appeal has been filed against the preliminary decree. He further contended that the limitation commenced since the date of the prepar-ation of preliminary decree, i. e. , on September 10, 1983 and the application was filed long after this date. In reply it has been contended by the learned counsel for the plaintiff non-petitioner that the trial court did not fix any time for making payment of the decretal amount, the cause of action for moving an application for passing of final decree arises only after the payment is not made within the time fixed by the preliminary decree and as such the application moved for passing final decree is well within limitation. He further contended that it is not in dispute that the plaintiff would be entitled to move such an application within three years of the decision of the said appeal. He relied upon Sivan pillai v. Anbayyan and others, 1976 (1) Admittedly, no time has been fixed in the preliminary decree for the payment of the decretal amount. Order 34 Rule 5 (3 ). C. P. C. runs as under :- " (3) Where payment in accordance with sub-rule (1) has not been made the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of rule 4 " It is clear from the above quoted provision that an application for passing final decree is moved only after the payment of the decretal amount is not made by the defendant. It is correct that the trial court should have mentioned a date in the preliminary decree by which the payment of the decretal amount was to be made by the defendants but it was not done so as required under order 34 Rule 2 (1), C. P. C. It is well settled law that a litigant should not be allowed to suffer due to a mistake on the part of the Court No specific period of limitation is prescribed either in the C. P. C. or in the Limitation Act for moving such an application. As such the residuary Article 137 of Limitation Act would apply. There is also no provision in the C. P. C. requiring dismissal of such a suit on the plaintiff's failure to move an application for final decree. It has been held in Shivan Pillai v. Anbayyan and others, (supra) as follows: - "the Allahabad High Court Pointed out that in the absence of a date fixed for payment of the amount, it could not be said that there had been a default in the payment which was a condition precedent for the accrual of a right to apply for final decree, vide rules 4 and 5 of Order 34 and paragraph 3 of First schedule of the Code the Court proceeded to state: - "it seems to us perfectly clear that a decree-holder can apply for a final decree only when there has been a default on the part of judgment-debtor in the payment of the amount specified in the preliminary decree by the date specified therein. It follows that 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. As we have pointed out above, the blank spaces in the printed form in the decree in question were not filled up. The result was that no amount was mentioned and no date was fixed. In these circumstances, we have no hesitation in accepting the contention of the respondent's learned counsel that time never began to run against Mt. Masuda under Article 181, Limitation Act, for the making of an application for the preparation of a final decree. " In view of these facts and circumstances, it cannot be siad that the trial court has acted illegally or with material irregularity in the exercise of its jurisdiction by ordering the passing of final decree. Consequently, the revision petition is dismissed. No order as to . ;