Case Note & Summary
The case involves a second appeal against the judgment of the 2nd Additional District Judge, Satara, which allowed the respondent's appeal and set aside the trial court's order passing a final decree of redemption in favour of the appellant. The appellant, Manik Dagadu Shaikh (since deceased through LRs), had filed a suit for redemption of mortgage in 1975, which was decreed on 26/10/1978 with a direction to deposit Rs.200/- mortgage money within six months. The appellant deposited the amount on 11/06/1978, before the preliminary decree was prepared on 27/12/1978. However, he filed the application for final decree under Order 34 Rule 8 CPC on 03/07/1990, i.e., after a delay of about 12 years. The trial court allowed the application and passed a final decree, but the appellate court reversed it on the ground of limitation. The High Court held that the application for final decree is not governed by the Limitation Act as it is a continuation of the suit. The court also noted that the respondent had not raised any objection regarding delay before the trial court and the appellant had shown sufficient cause. The High Court set aside the appellate judgment and restored the trial court's order, allowing the appeal.
Headnote
A) Civil Procedure Code - Redemption of Mortgage - Final Decree - Limitation - Application under Order 34 Rule 8 CPC for passing final decree of redemption is not governed by the Limitation Act, 1963, as it is a step in the suit and not an independent proceeding. The court held that the period of limitation for such application is not prescribed and the court can condone delay if sufficient cause is shown. (Paras 5-10) B) Civil Procedure Code - Order 34 Rule 8 - Final Decree - Delay Condonation - The court has inherent power to condone delay in filing final decree application if the delay is explained and no prejudice is caused to the opposite party. In this case, the appellant deposited the mortgage money within time but filed final decree application after 12 years; the delay was condoned as the respondent had not raised any objection earlier and the appellant had shown sufficient cause. (Paras 11-15)
Issue of Consideration
Whether the application for final decree of redemption under Order 34 Rule 8 CPC is governed by the law of limitation, and if so, whether the delay in filing such application can be condoned.
Final Decision
The High Court allowed the appeal, set aside the judgment of the 2nd Additional District Judge, Satara, dated 06/05/2000, and restored the order of the Civil Judge Junior Division, Phaltan, dated 06/07/1994, thereby passing the final decree of redemption in favour of the appellant.
Law Points
- Redemption of mortgage
- Final decree
- Limitation Act
- Order 34 Rule 8 CPC
- Delay condonation
- Sufficient cause
