Case Note & Summary
The case arises from a mortgage suit filed by M/s. Visu Financiers (plaintiff) against G. Sundararaj (defendant) for recovery of money due on a mortgage. An ex parte decree was passed on 12.11.2009. The defendant filed an application to set aside the decree, which was conditionally allowed requiring deposit of 1/3 of the decreed amount. The defendant challenged this condition through revisions and an SLP, all of which were dismissed, with the final dismissal by the Madras High Court on 02.07.2018. Thereafter, the plaintiff filed a final decree application on 20.09.2019, which was dismissed by the trial court on 15.10.2022 as barred by limitation. The plaintiff filed a civil revision petition under Article 227 of the Constitution. The High Court analyzed the limitation issue, noting that the plaintiff was not required to file a final decree application while the defendant was actively litigating against the ex parte decree. The court applied Section 14 of the Limitation Act, 1963, to exclude the time spent by the plaintiff in bona fide prosecuting the earlier proceedings, as the plaintiff had to await the outcome of the defendant's challenges. The court held that the right to apply for a final decree accrued only after the defendant's last challenge was dismissed on 02.07.2018, and the application filed on 20.09.2019 was within the three-year period under Article 137. The court set aside the trial court's order and directed the trial court to proceed with the final decree application on merits.
Headnote
A) Limitation Act - Exclusion of Time - Section 14 - Bona Fide Prosecution - The court considered whether time spent by the plaintiff in awaiting the outcome of the defendant's litigation against the ex parte decree could be excluded under Section 14 of the Limitation Act, 1963, for filing a final decree application. Held that the plaintiff was prosecuting with due diligence and the earlier proceedings were in good faith, thus the period from 12.11.2009 (ex parte decree) to 02.07.2018 (dismissal of CRP) is excluded, making the final decree application filed on 20.09.2019 within limitation (Paras 10-15). B) Civil Procedure Code - Final Decree - Order 34 Rule 5 - Limitation - The court examined the limitation period for filing a final decree application in a mortgage suit. Held that under Article 137 of the Limitation Act, the period is three years from the date when the right to apply accrues, which in this case was after the final disposal of the defendant's challenge to the ex parte decree on 02.07.2018, and the application filed on 20.09.2019 was within time (Paras 8-10).
Issue of Consideration
Whether the time spent by the defendant in pursuing proceedings to set aside the ex parte decree and related revisions can be excluded under Section 14 of the Limitation Act, 1963, for the purpose of computing limitation for filing a final decree application under Order 34 Rule 5 of CPC.
Final Decision
The Civil Revision Petition is allowed. The order dated 15.10.2022 passed by the Principal Subordinate Judge, Kumbakonam, in I.A.No.236 of 2019 in O.S.No.144 of 2004 is set aside. The trial court is directed to proceed with the final decree application on merits and dispose of it within a period of three months from the date of receipt of a copy of this order.
Law Points
- Limitation for final decree application
- Exclusion of time spent in bona fide litigation
- Section 14 of Limitation Act
- 1963
- Order 34 Rule 5 CPC
- Mortgage decree execution
