Baldev Singh vs Kishan Singh Rep.by L.Rs.

I.S. Tiwana, J.

In this letters patent appeal filed by the defendant mortgagees, the facts relevant are straight and simple. On 30.11.1963 a preliminary decree for redemption of the suit property on payment of Rs. 29,676/ was passed in favour of the plaintiffrespondents The plaintiffs were allowed three months'' time to deposit the aforesaid amount and in case of failure the defendants were, made entitled to apply for a final decree. The plaintiffs not feeling satisfied with the quantum of the amount made payable by them preferred Regular First Appeal No. 49 of 1964 in this Court. The same, however, was dismissed on 20.11.1973. During the pendency of this appeal, an application was moved by the plaintiffs for the grant of stay of proceedings under Order 34, Rule 8 of the Code of Civil Procedure (for short, ''the Code''). On 19.11.1965, this Court passed the following order :

"If the final orders are passed on the respondents'' application under Order 34, Rule 8 C.P.C. it will lead to unnecessary complications as the appeal is pending against the preliminary decree. I accordingly order that so long as the petitioners'' appeal is not disposed of final orders on the respondents'' application under Order 34 Rule 8 C.P.C. shall not be passed."

After the disposal of the abovesaid regular first appeal, the plaintiffs moved an application on 3.12.1973, for the extension of time for depositing the decretal amount of Rs. 29,676/. The trial Court vide detailed order dated 3.1.1974, extended the time for the deposit of the amount upto 3.2.1974. The amount was actually deposited by the plaintiffs on 1.2.1974. On deposit of this amount, an application under Order 34, Rule 8 of the Code was moved on 4.11974 for passing the final decree. This application, however, was contested by the defendantsappellants, inter alia on the plea that the same was barred by time. Having failed on this issue in the trial Court, defendants reagitated the matter before the learned Single Judge who vide his judgment under appeal has concurred with the decision of the trial Court. It is the same very issue which has now been agitated before us.

Mr. Viney Mittal, the learned counsel for the appellants, has raised a twin argument before us : (i) the application filed by the plaintiff respondents on 3.12.1973 for extension of time for depositing the decretal amount was filed after more than three years of the expiry of time allowed under the preliminary decree and, therefore, was barred by limitation, and similarly (ii) the application under Order 34, Rule 8 of the Code was also filed after an interRegulation m of more than three years from the passing of the preliminary decree and, therefore, the same too was barred by time. In nutshell, the stand of the learned counsel is that in terms of Article 137 of the Limitation Act these applications could not be filed after the passing away of more than three years. We are, however, of the opinion that this stand merits no acceptance. So far as the application for extension of time referred to above was concerned, the same had been filed in terms of subrule (2) of Rule 7 of Order 34, which provides that :

"The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under subrule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest."

The expression, "from time to time, at any time" occurring in this sub rule clearly entitles the Court to extend time for the payment of the amount found due from as mortgagor and no question of any period of limitation is involved. This extension of time may be granted irrespective of the nature of the mortgage and the extent of the time allowed initially. Besides this, the learned Single Judge vide his order dater 19.11.1965 : had stayed the proceedings in the trial Court.

So far as the application filed by the plaintiffrespondents under Order 34, Rule 8 of the Code for the passing of the final decree is concerned, the same no doubt was governed by Article 137 of the Limitation Act, but, in terms of the same the time against them was to run from the date when the right to apply had accrued to them, i.e. after the deposit of the decretal amount which they did on 1.2.1974. The application was filed by them on 4.2.1974. It is axiomatic that prior to the depositing of the amount they could not file any such application for the passing of the final decree. Since the amount was deposited by the mortgagors within the extended time, no fault could either be found with the deposit or with their prayer for the passing of the final decree, as has been held by the two Courts, i.e. the trial Court and the learned Single Judge.

For the reasons recorded above, we find no merit whatsoever in this appeal and dismiss the same but with no order as to costs.