Bank of India vs Pothula Veera Krishna Rao and Others

P.S. Narayana, J.—Heard Sri S. Suryaprakasa Rao, learned Counsel representing the revision petitioner-plaintiff.

Though respondents-defendants had been served, none represents them.

Sri S. Suryaprakasa Rao, learned Counsel representing the petitioner-Bank of India, would maintain that the learned Senior Civil Judge, Kovvur had totally erred in reckoning the period of limitation having been confused by the concept of merger, and importing the same while calculating the period of limitation. The learned Counsel also would maintain that whether stay application had been moved before the appellate Court along with appeal, whether stay had been granted or not, these aspects would not seriously alter the situation and the period to be reckoned from the date of disposal of the appeal. If the date of appeal decree to be taken into consideration, the final decree application was filed within time. The learned Counsel had laid emphasis on Article 137 of the Limitation Act, 1963, (for short ''the Act'') on the aspect when the right to apply accrues. Learned Counsel placed strong reliance on Posani Ramachandraiah v. Daggupati Sashamma 1978 (2) APLJ 1.

This revision petition is filed by the Bank of India-the unsuccessful petitioner-plaintiff, under Article 227 of the Constitution of India, being aggrieved of the order made in I.A. No. 720 of 2005 in O.S. No. 54 of 1992, on the file of the Senior Civil Judge, Kovvur. The respondents are the defendants in the suit aforesaid. The petitioner-plaintiff filed an application under Order 34 Rule 5 C.P.C., praying for passing of the final decree in terms of the preliminary decree dated 25.11.1997 and order for sale of the mortgaged properties enabling it to recover the decree amount with subsequent interest and costs.

The preliminary decree was passed on 25.11.1997 granting three months time for redemption, with subsequent interest. The respondent-defendants did not make any deposit and the time for redemption also extinguished by 25.02.1998. The respondents-defendants filed appeal in A.S. No. 351 of 1998, which was dismissed by this Court on 22.06.2004. The learned Senior Civil Judge, Kovvur, however, recorded as though A.S. No. 54 of 1992 was dismissed on 22.06.2004. It appears it is a mistake. May be O.S. No. 54 of 1992 had been recorded as A.S. No. 54 of 1992. Be that as it may, the learned Judge in the subsequent paragraphs, no doubt, referred to the correct appeal number. The learned Judge referred to the judgments in Amba Bai and Ors. v. Gopal and Ors. 2001 (3) ALD 130 (SC) , Smt. Nausaee and Others Vs. Lyakat and Others, , Ratansingh v. Vijaysingh and Ors. AIR 2001 SC 279 , Sukhdev Pershad (died), his L.R. Durga Pershad Vs. B. Kishanlal and Others, and Chandi Prasad and Ors. v. Jagdish Prasad and Ors. 2004 SAR (Civil) 913. After referring to these decisions, the learned Judge came to the conclusion that since the respondents-defendants in appeal aforesaid had not filed any stay application along with the appeal, the period of limitation to be reckoned from the date of passing of preliminary decree by the Court of first instance, and hence, the application is barred by limitation.

Article 137 of the Act reads as under.

----------------------------------------------------------------------- Description of Applicant Period of Time from which Limitation period brings to run. ----------------------------------------------------------------------- Any other application for Three years When the right to which no period of apply accrues limitation is provided elsewhere in this division. -----------------------------------------------------------------------

Time from which the period begins to run specifies when the right to apply accrues. It is needless to say that the right to apply accrues from the date of the disposal of the appeal and if the date of dismissal of the appeal to be taken into consideration, the application is perfectly within limitation.

The learned Division Bench of this Court in 1 supra observed as hereunder.

Under Article 136 of the Limitation Act, 1963, the period of limitation can be reckoned from the date of decree of the appellate Court even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate Court, and the period of limitation has to be reckoned from the date of that decree.

The learned Division Bench referred to Nacharammal and Others Vs. Veerappa Chettiar, and S.T.M. Vyravan Chettiar Vs. R.M. Rayalu Ayyar Nagaswami Ayyar and Co., Even otherwise in the light of the language of Article 137, which was referred to supra, this Court is of the considered view that the period of limitation be reckoned from the date of the appeal-decree and not from the date of decree of the original Court. Hence the order under challenge cannot be sustained, and the same is accordingly hereby set aside.

Accordingly, the Civil Revision Petition is allowed. There shall be no order as to costs.