1999CLC531 (PLP)

34(5) Final decree in suit for sale.‑‑‑ Where on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub‑rule (3) of this Rule, the defendant: makes payment into Court of all amounts due from him under sub‑Rule (1) of Rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, and or.‑‑" According to the First Schedule, Article 181 of the Limitation Act provides which is as follows:‑‑ "Article 181 Applications for Three years When the right to which no period of limitation apply accrues. is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908. " In view of the preliminary decree passed by the learned Single Judge and its relevant portions referred to and reproduced hereinabove and the provisions of Order 34(1) and (5), C.P.C. and Article 181 of the Limitation Act we would like to discuss the case‑law referred to by the learned counsel for the parties. (1) State Life Insurance v. S.A. Aziz Rizvi PLD 1986 Kar.

79. In this matter execution application was filed by the applicant/decree‑holder against S.A. Aziz Rizvi, judgment‑debtor for execution of the final decree, dated 10‑1‑1982 passed by a learned Single Judge of this Court. Office raised objections a to the maintainability of this execution application for want of jurisdiction and the learned Single Bench of this Court considering all the aspects was pleased to hold that execution application was maintainable which was subsequently entertained. With due respect to the authority, in this matter final decree has not been framed by the Court and the application for passing of final decree was rejected by the learned Judge holding the same to be time‑barred. Whereas in the case relied upon by the learned counsel for the appellant matter was submitted in the Court for execution of a final decree. Under the circumstances this case has no bearing to the present case and is not helpful to the case of the appellant. The case of Ramanathan Chetty v. Alagappa Chetty and others AIR 1930 Mad. 528 a final decree in a suit dissolving partnership was passed on 14th January, 1915, it contained certain directions of interlocutory nature. An application to pass a final decree persuant to such direction was granted holding that the direction in the decree being of an interlocutory nature, the suit is still pending. Curgenven, took the view that no provision of Limitation Act was applicable to application in a pending suit and Article 181 was not attracted. In the main case relied upon by Mr. Akhtar i.e. Muchi Dola Behra and others v. Jujisti Janni and others AIR 1935 Mad. 716 it seems that while sitting in a Division Bench after few years even the same learned Judge did not appear to adhere to the same view. A preliminary decree in a mortgage suit was passed on 16th March, 1925 and time for redemption was allowed up to 16th June. The debt was not redeemed and a first application for passing a final decree was made on 10th February, 1927 but was dismissed on 3rd October, as the plaintiff/decree‑holder did not take certain steps regarding issue of notice. The second application was made on 6th July, 1928 and was found to be late by 4 days. The application was dismissed as time‑barred. The correctness of the finding of the Trial Court as to the bar of limitation was not challenged and it was argued that the earlier application, dated 10‑2‑1927 ought to be treated as pending and the second application only a continuation of the first one. It was contended that most of the defendants had been certified that notices pursuant to the Court order and only a few of them remained unserved and such notice was not mandatory it was held that the applicant for final decree as against those judgment‑debtors which have been served was not justified, however, the judgment of the Trial Court was maintained in respect of those regarding whom the requisite steps had been taken. The above judgment, it may be observed proceeds on a different legal principles and does not help the appellant. On the other hand it tends to show that even the same learned Judge did not adhere to his earlier view, because if Article 181 was not applicable, the second application could not be dismissed at all. Mst. Zubeda Bano v. S.M. Anwar Sethi and another PLD 1982 Kar.

216. In this matter a learned Division Bench consisting of Ajmal Mian and G.M. Korejo, JJ., (as their Lordships then were) after considering the provision of Order XXXIV, Rule 5, C.P.C. and Transfer of Property Act, section 69 observed as follows:‑‑ "It may be noticed that under the above provision a defendant may approach the Court either (a) on or before the day fixed by the Court or (b) at any time before the confirmation of a sale made in pursuance of a final decree. In our view the phrase ' at any time' is of wide import as to include even a case in which no sale in fact has taken place in furtherance of a final decree. The emphasis is that a defendant if he wishes to apply to the Court should do so before the Court confirms the sale of the mortgaged property. If the Court has the power to pass an order after the sale before its confirmation, in our view, the Court has also the power to pass an order in a case, in which no sale has taken place." With due respect to the authority in our humble opinion this authority is not relevant to the facts of the present appeal inasmuch as in this case appellants through criminal negligence have deliberately avoided to file the application for passing of the final decree within the time stipulated by the provisions of the statute. The application was filed after expiry of the period of three years which was rejected and as such final decree could not be passed. Therefore, this authority in our humble opinion is not helpful to the case of the appellants. We would like to discuss the case‑law referred to by Mr. Anwar Hussain, learned counsel for the respondents and learned amicus curiae. Mian Akbar Hussain v. Mst. Aishabai and others PLD 1991 SC

985. Their Lordships of the Supreme Court in this matter have held that in execution of judgment and decree passed by the High Court of Sindh in civil suits provisions of Article 183, Limitation Act would not be applicable but Article 181 or 182 would apply. In this matter their Lordships of the Supreme Court after considering the provisions of section 2(4) of the C.P.C. read with Article 181 of the Limitation Act, observed that execution of decree as laid down by the Article 181 of the Limitation Act, is residuary Article and it applies to all matters in respect of which no period of limitation is provided. Muhammad Qasim and others v. Moujuddin and others 1995 SCMR

218. Their Lordships of the Supreme Court after discussing the Order XLI, Rules 17 and 19 of the C.P.C. and Articles 181 and 168 of the Limitation Act observed that order of dismissal of appeal for non‑prosecution, dated 26‑8‑1989 was void and nullity, the appropriate Article applicable was Article 181 of the First Schedule to the Limitation Act and not Article 168 thereof. Naeem Finance Ltd. and another v. Bashir Ahmed Rafiqui, Administrator, Muslim Insurance Company Ltd. and another PLD 1971 SC

8. In this case it is held that Article 181 of the Limitation Act is not applicable to the applications other than those falling under Civil Procedure Code. Ideal Life Insurance Company Ltd. v. Haji Usman and 2 others 1982 CLC 2191. In this case it has been held that the plaintiff did not apply for final decree under Order XXXIV, Rule 5, C.P.C. and after 9 years the defendants filed the application. The contention of the defendants was that plaintiffs have not applied for passing of a final decree and as after expiry of 8 years an application cannot be made. The preliminary decree is only a dead paper and could not be executed. Gajadhar Singh v. Kishen Jiwan Lal and others AIR 1917 All.

163. In this matter it was held that an application for a decree absolute under Order 34, Rule 5, Civil Procedure Code is an application in the suit for a final decree and not an application for execution and is governed by Article 181 Schedule 1, Limitation Act. Ram Nath v. Deokinandan Krishna and others AIR (34) 1947 All.

83. In this case it has been held that application, dated 24‑1‑1912 for preparation of the final decree in accordance with the preliminary decree of the appellate Court was time‑barred under Article 181 of the Limitation Act and no execution of the decree could take place on the application of 9‑9‑1941 as no final decree in accordance with the preliminary decree of the Appellate Court existed on that date. M.A.L.M. Chettyar Firm v. Mating Po Hmyin and others AIR 1935 Rangoon

239. The dictum of this authority is that an application for final decree is not an application to enforce the preliminary decree. It is governed by Article 181 and not by Article

183. Balaram Naik v. Kanhai Bharan Mahapatra AIR 1916 Pat.

282. In this matter it was held that application for final decree for foreclosure or sale is governed by Limitation Act under Article

181. Datto Atmaram Hasabanis v. Shankar Dattatraya 38 ILR Bom.

32. In this case it was held that an application for a decree absolute for sale of a mortgage charge under the terms of a consent decree, which provided for satisfaction of the decretal debt by instalments, is an application under the Civil Procedure Code, Order XXXIV, C.P.C. is governed by Article 181, Schedule 1 of the Limitation Act. Such application must be made within three years from the time the right to apply accrues. Kaza Ramakotayya and others v. Nimmagadda Sitharamaswami and minor by mother and guardian Mahalakshmamma and others AIR (33) 1946 Mad.

381. In this case it was held that section 5 of the Limitation Act, has not been made applicable to an application for passing a final decree under Order 34, Rule 5, C.P.C. and, therefore, the Court has no power to condone the delay in filing such an application. Saiyed Jawad Hussain v. Gendan Singh AIR 1926 PC

93. In this matter dictum laid down is that when an appeal has been preferred against a preliminary decree the time for applying for final decree runs from the date of appellate decree. Fitahomes and another v. Bank of Upper India Ltd. AIR 1927 PC

25. Their Lordships of the Privy Council considering the decision of the case of Jawad Hussain v. Gendan Singh AIR 1926 PC 93 held that where there has been an appeal from a preliminary mortgage decree under Order 34, Rule 4 sub‑rule (1) and the appellate Court has not extended the time for payment, the period of three years within which under the Indian Limitation Act, 1908 Schedule 1, Article 181 an application for a final decree under Order 34, Rule 5, sub‑rule (2) must be made, runs from the date of the decree of the Appellate Court, not from the expiry of the time for payment fixed by the preliminary decree. Madan Theaters Ltd. v. Dinshaw & Co. Bankers Ltd. AIR (32) 1945 P.C.

15. In this case it was held that Order 21, Rule 2 only applies in execution and since execution does not begin until after a final order for sale has been passed the rule has no application when the question is whether or not a final decree for sale should be passed. Ram Nath v. Deokinandan Krishna and others AIR (34) 1947 All.

83. In this matter it has been held that it is obvious that the application, dated 24‑1‑1942 for the preparation of the final decree in accordance with the preliminary decree prepared by the Court was beyond three years, clearly barred by Article 181, Limitation Act. We have gone through the material placed with the case and have perused the order of the learned Single Judge rejecting the application under Order 37, Rule 3, C.P.C. filed by defendants vide order, dated 29‑1‑1984 in pursuance thereof preliminary decree was passed on 29‑1‑1984 referred to and reproduced hereinabove. According to the provisions of Article 181 of the Limitation Act the appellants were supposed to apply for final decree within a period of three years which should have been filed before 29‑11‑1987. The unfortunate aspect of the case is that officers .of the appellants did not take proper care for filing the application under Order 34, Rule 5(3), C.P.C. for final decree within the prescribed time with the result that their application was rejected by the learned Single Judge vide order, dated 13‑1‑1991. For such delay no plausible explanation is forthcoming from the functionaries of the appellants 'who are public servants and are supposed to look after and safeguard the interest of the Institution for which they are serving, for which they are getting salaries and other benefits. The contention of Mr. A.R. Akhtar, learned counsel that respondents made fresh promises to pay the dues of appellants and kept them on false hops and subsequently made the payments of Rs.40,000 as detailed below: On 16‑4‑1989 respondents paid Rs.10,000 on 20‑5‑1989 paid Rs.20,000 and on 30‑8‑1989 paid Rs.10,000 but all these payments were made after expiry of a period of three years from passing of the preliminary decree which was prepared on 29‑1‑1984 granting the defendants six months time to make the payment of decretal amount. The period of six months expired on 29‑7‑1984, under the circumstances application for final decree in any case should have been filed before 29‑7‑1987 whereas the application was filed after the expiry period of three years and even payments mentioned hereinabove were made after the expiry period of three years. The letter or promise if any written or made by the respondents in any written or made by the respondents in any case with after the expiry of the period of three years. The contention of Mr. A.R. Akhtar, learned counsel is that respondents acknowledged the liability but record shows that acknowledgment was made after the expiry of the limitation. The appellants through this appeal want to get the relief for final decree which under the circumstances is clearly barred by the provisions of the Limitation Act. The case‑law referred to and discussed hereinabove in our humble opinion is not relevant and helpful to the case of the appellants whereas the case -law referred to and relied upon by the learned counsel for the respondents and the learned amicus curiae is relevant, applicable and helpful to the case of the respondents. The very unfortunate aspect of the matter is that appellant/bank has been deprived of heavy amount alongwith interest for which the application of the respondents under Order 37, Rule 3 was dismissed and in pursuance thereof preliminary decree was prepared for which specific time was provided but the concerned officers of the appellant with their criminal negligence did not take proper efforts to get the final decree from the Court and consumed the time so that bank may lose their dues, proper and legal amount which was to be paid by the respondents for which they have mortgaged their valuable properties with the result that final decree could not be prepared and the respondents got themselves scot free from making the due payment to the appellant. We are mindful of this fact but keeping in view the provisions of the Civil Procedure Code, Limitation Act and authorities of Indian Jurisdiction and our own High Court and the Supreme Court and the Privy Council we have no option except to hold that appeal is devoid of merits and substance which accordingly is hereby dismissed with no orders as to costs. Before parting with this judgment we would like to express/desire that copy of this judgment may be sent to the President, Habib Bank Ltd. so that proper inquiry may be held and the concerned officers responsible for this criminal negligence may be taken to task and may be properly punished. We are very thankful to the assistance rendered by the learned counsel for the parties and especially Mr. Makhdoom Ali Khan amicus curiae. Without their able assistance we would not have been able to reach to this present conclusion. On 13‑3‑1998 appeal was dismissed by short order and above are the reasons for the same. H.B.T./H‑69/K Appeal dismissed.