P. Subramania Pillai vs Vadivu Ammal and Others

Ratnam, J.—The defendant in O.S. 183 of 1973, District Munsif''s Court, Tirunelveli, is the appellant in this second appeal. That suit was

instituted by deceased Shanmugham Pillai, whose legal representatives are respondents 1 to 8 herein, for the recovery of a sum of Rs. 3,979-77

towards the amounts due on two mortgages dated 24.2.1958 for Rs. 2,000 and 26.2.1959 for Rs. 100 respectively, executed by the appellant in

his favour. On 26.3.1973, a preliminary decree for sale in form 5-A of the Appendix D to the CPC was passed and the appellant was directed to

pay into Court on or before 26.4.1973, or, any later date upto which time for payment may be extended by court, a sum of Rs. 4,455-27 with

interest on Rs. 2,100 at 6 per cent per annum from 26.3.1973 till the date of payment. Admittedly, the appellant did not pay into Court any

amount on or before 26.4.1973 or even later, as it is common ground that time for payment was also not extended. Meanwhile on 5.11.1975, the

plaintiff in the suit died and in I.A. 887 of 1979, the respondents sought to bring themselves on record as the legal representatives of the deceased

plaintiff. That application was opposed by the appellant herein on the ground that it was barred by limitation. However by an order passed on I.A.

887 of 1979, the respondents were brought on record as the legal representatives of the deceased plaintiff in the suit. On 21.12.1978, the

respondents filed an application for passing of a final decree and that application was resisted by the appellant on the ground that it was barred by

limitation, having been filed more than three years from the date of the preliminary decree. The learned District Munsif, Tirunelveli, after referring to

the order passed in LA. 887 of 1979 held that in the light of that order, the final decree application should be allowed and accordingly passed a

final decree. Aggrieved by this, the appellant herein preferred an appeal in A.S.275 of 1979 before the Sub-Court, Tirunelveli. The appellate court

took the view that though the legal representatives of the decree holder did not put forward any ground that the appellant was a debtor, the lower

court should have had reasons to presume such a plea to have been made and held that the respondents were prevented from filing an application

for the passing of a final decree owing to the Debt Relief Acts, and excluding that period, the application for the passing of a final decree had been

filed in time. On that view, the lower appellate court affirmed the final decree passed by the trial court and dismissed the appeal, the correctness of

which is questioned in this second appeal.

Learned Counsel for the appellant submitted that having regard to the passing of a preliminary decree against the appellant in Form 5-A under

Order 34, Rule 4, C.P.C. and the granting of time for payment, an application for the passing of a final decree consequent upon the non-payment

within the time granted by court, would fall under Order 34, Rule 5(3), C.P.C., and such an application should have been made within three years

from the date when the amount became payable, as provided for under Article 137 of the Limitation Act, 1963. Strong reliance in this connection

was placed by the learned Counsel for the appellant upon the decision in The Kumbakonam Municipal Council Vs. Poonachi alias Habina Beevi, .

On the other hand, learned Counsel for the respondents contended that the appellant was entitled, as a debtor, to the benefits of the Debt Relief

Acts, and if the period, during which proceedings could not be initiated against the appellant is excluded, then the application filed would be well

within time.

There is no dispute that according to Clause 2(i) of the preliminary decree for sale passed in this case in Form 5-A of Appendix D to the Civil

Procedure Code, the appellant was ordered to pay into the court on or before 26.4.1973 or any later date upto which time for payment may be

extended by court, a sum of Rs. 4,455-27 with interest on Rs. 2,100 at 6 per cent per annum, from 26.3.1973 till the date of payment. The

appellant did not pay any amount at all and the time for payment was also not extended by the court. Under Clause (3) of the preliminary decree, it

was further ordered and decreed that in default of payment, the plaintiff may apply to the court for a final decree for the sale of the mortgaged

properties. Thus, in accordance with Clause (3) of the preliminary decree, the decree holder secured a right to apply for the passing of a final

decree for the sale of the mortgaged properties on the failure of the appellant to pay the amount on or before 26.4.1973. To put it differently, the

right to apply for a final decree in accordance with Clause (3) of the preliminary decree accrued to the decree holder on the failure of the appellant

to pay the amount on or before 26.4.1973. Where a person has obtained a preliminary decree for sale and the amount payable thereunder had not

been paid within the time granted by the decree, in order to sell the properties mortgaged and realise the amounts due, such a person has

necessarily to obtain a final decree and the right to apply for such a final decree accrues or arises on the failure of the appellant to pay the amount

due within the time granted. In this case, the appellant had been granted time to pay the amount till 26.4.1973 and on his failure to pay the amount

within that time, the right to apply for the passing of a final decree arose in favour of the decree holder on and from 27.4.1973. The Article

applicable to such an application is Article 137 of the Limitation Act, 1963 providing for a period of three years, to make the application when the

right to apply accrues. In this case, the right to apply for a final decree arose in favour of the decree holder on and from 27.4.1973 and the

application for the passing of a final decree was filed only on 21.12.1978. Consistently it has been laid down that the Article applicable to such an

application is Article 181 of the Limitation Act, 1908, corresponding to Article 137 of the Limitation Act (Act 36 of 1963), 1963-vide

Subbulakshmi Ammal v. Ramanujam Chettiar 42 Mad. 777; Mummadi Venkatiah v. Boganathan Venkatasubbiah 58 L.W. 441 : 42 M.L.J. 51;

Rajamayyer alias Subramania Iyer Vs. Venkatasubba Iyer and Others, and The Kumbakonam Municipal Council Vs. Poonachi alias Habina

Beevi, . Applying the principle laid down in the aforesaid decisions, it follows that the application filed by the respondents on 21.12.1978 for the

passing of a final decree was barred by limitation.

However, the respondents claimed that the application for the passing of a final decree filed by them, was not barred by limitation, as the

appellant was a debtor entitled to the benefits of the Debt Relief Acts. It may be immediately stated that there is absolutely no material whatever in

support of the claim of the respondents that the appellant is entitled to such benefits. Indeed, the respondents have not placed before the court any

evidence to support their claim that the appellant is so entitled to the benefits of the Debt Relief Acts. Even so, the trial Court relied on the order

passed in I.A. 887 of 1979 for bringing on record the respondents as the legal representatives of the deceased plaintiff in the suit, to hold that the

appellant is entitled to the benefits of the Debt Relief Acts and therefore the respondents were prevented from filing the application for the passing

of a final decree for a period of three and a half years from 15.1.1975 and 14.7.1978 and excluding that period, the application filed would be in

time. It has to be borne in mind that I.A.887 of 1979 was only an application for bringing on record the respondents as the legal representatives.

There was no material placed before the Court even at that stage to show that the appellant was entitled to the benefits of the Debt Relief Acts. In

I.A. 887 of 1979, the Court merely brought on record the respondents as the legal representatives of the deceased plaintiff, after overruling some

objections raised by the appellant in that behalf and that cannot have any bearing whatever upon the objection regarding limitation with reference to

the application for passing a final decree. It has earlier been seen how even in the course of I A. 887 of 1979, there was no material placed by the

respondents before the Court to establish that the appellant is entitled to the benefits of the Debt Relief Acts. If that be so, then, the order in I A.

887 of 1979 cannot be relied upon to show that the appellant was entitled to such benefits. Without there being any material in support of the claim

that the appellant is entitled to the benefits of the Debt Relief Acts, the trial Court had concluded that the appellant is entitled to such benefits and

on that footing, had passed the final decree holding that the application in that regard was filed within time. The lower appellate Court was also fully

aware of the absence of any material in support of the claim of the respondents that the appellant is entitled to the benefit of the Debt Relief Acts,

for, in para 7 of its judgment, it had stated that even though the legal representatives of the deceased decree holder did not expressly put forward

any ground that the appellant was a debtor, the Court should have had reason to presume such a plea to have been made. Whether a person is

entitled to the benefits of Debt Relief Acts or not, cannot be a matter of any presumption, but has to be established as a fact by evidence in support

of the same. That however has not been done at all in this case. The Courts below have proceeded on an assumption that the appellant is entitled

to the benefits of the Debt Relief Acts and that had prevented the decree holder or his legal representatives from even filing an application for the

passing of a final decree for a period of nearly 31/2 years and therefore that period has to be excluded in computing the period of three years

under Article 137 of the Limitation Act. That view so taken by the Court below is plainly unsustainable, as there is not even a whisper made by the

respondents in the application for the passing of a final decree to the effect that the appellant is entitled to the benefits of the Debt Relief Acts and

there is also no material or evidence in support of such claim made by the respondents. In other words, on a presumption that the appellant is

entitled to the benefits of the Debt Relief Acts and that prevented the filing of the application for the passing of a final decree by the respondents for

a period of 31/2 years, the Courts below have proceeded to hold that the final decree application filed on 21.12.1978 is in time. As pointed out

earlier, the entitlement of the appellant to the benefits of the Debt Relief Acts, cannot be based on either assumptions or presumptions; but has to

be established as a fact and since that has not been done, the Courts below were in error in holding that the appellant is entitled to the benefits of

the Debt Relief Acts, and that the application filed by them on 21.12.1978 beyond a period of three years from 27.4.1973, would not be barred

by limitation under Article 137 of the Limitation Act. Consequently, the second appeal is allowed, the decree and judgment of the Courts below

are set aside and I.A. 888 of 1979 in O.S. 1973 will stand dismissed. There will be, however, no order as to costs in the second appeal.