Sudesh Vithal Hanamsheth And Anr. vs Sadanand Shivrao Koppal And Ors.

2. The only question for determination is whether the application for final decree as filed by the appellants was barred by limitation, as has been held by the courts below.

3. There is no dispute that it is Article 137 of the Limitation Act, 1963, which applies and which has prescribed three years as the period of limitation to be reckoned from the date right to apply accrues. The contention of the appellant is that no preliminary decree as required by Order 34 Rule 7 CPC having been prepared, which was required to be, as the suit was for redemption of mortgage, he could not have really made an application for final decree as contemplated by Rule 8 of this Order; and, as such, there could have been no question of his application for final decree being barred by limitation.

4. Though this was not the point urged in the courts below, the same being a pure question of law and the preliminary decree as prepared being a part of the record available to us, we have permitted the learned counsel for the appellants to urge this point. A perusal of the preliminary decree, which is at pp. 19 and 20 of Vol. II, shows that it is not in accordance with Order 34 Rule 7, which requires, inter alia, the taking of account of what was due to the defendant towards principal and interest. This is necessary to enable the plaintiff to pay the amount in question, whereafter he can ask for preparation of final decree, as would appear from a reading of Order 34 Rule 8. This not having been done and it being an obligation of the court to do so, we are of the view that the submission advanced by the learned counsel for the appellants merits acceptance, inasmuch as it is a settled position in law that for lapse of the court, a party cannot be penalised.

5. The appeal is, therefore, allowed and we direct the trial court to prepare the preliminary decree as required by Order 34 Rule 7, whereafter the appellants would act in accordance with the preliminary decree and then apply for final decree on requirements of Rule 8 being satisfied. It is apparent that the application for final decree would be made within three years of drawing of the preliminary decree.

6. The appeal is allowed accordingly by setting aside the impugned judgment. In the facts and circumstances of the case, we make no order as to costs.