R DORATHY Vs. THANGAYYAN JOSEPHRAJ

JUDGEMENT

(1.) 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.

(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.) 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 MLJ. 378 in which there was reference to Sivan Pillai v. Anbayyan (1976)1 MLJ. 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 underO.34Rule 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. 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 inO.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 MLJ. 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.