The main legal point established in the judgment is the applicability of Article 137 of the Limitation Act to an application for final decree in a mortgage suit under Order XXXIV of CPC.

IA No.7177/2013 (of plaintiff u/O XXXIV R-3(2)&(3) CPC)

1. In this mortgage suit under Order XXXIV of Code of Civil Procedure, 1908 (CPC) for recovery of Rs.7,03,500/- with future interest @ 17% per annum compounded quarterly from the date of institution of the suit till realisation and for sale of the hypothecated and mortgaged properties for realisation of the said amounts, on 26th April, 2001, a preliminary decree in the sum of Rs.7,03,500/- along with interest @ 12.5% per annum with costs was passed and the defendants were directed to pay into the Court the decretal amount within six months therefrom. It was further provided that if no payment is made, the plaintiff Bank would be entitled to seek a final decree.

2. The defendants M/s Mayur Exports and Shri Anil Kumar Sethi though had contested the suit by filing a written statement but the judgment dated 26th April, 2001 records that the defendants stopped appearing at the stage of evidence and neither cross-examined the witnesses of the plaintiff Bank nor led evidence of their own. Hence, the preliminary decree aforesaid was an ex-parte decree.

3. No monies as decreed were deposited by the defendants in the Court within six months of the decree dated 26th April, 2001 or thereafter.

4. Notwithstanding the same, the plaintiff Bank also did not apply seeking final decree and filed this application only on 22nd April, 2013.

5. The application came up before this Court first on 2nd May, 2013. In the order dated 20th May, 2013, it was observed that the application “apparently, is not within time”. The plaintiff Bank thereafter filed IA No.15373/2013 under Section 5 of the Limitation Act, 1963 for condonation of the delay in applying for final decree, though pleading that Order XXXIV of CPC nowhere provides the period for applying for final decree. The said application under Section 5 of the Limitation Act came up before the Court first on 24th September, 2013 when the same was dismissed as withdrawn.

6. This application was dismissed in default of appearance of the plaintiff Bank on 20th February, 2014 but was, on application of the plaintiff Bank, on 15th July, 2014 restored.

7. The application was thereafter adjourned from time to time.

8. On 29th February, 2016, finding that notice even of the application had not been issued to the defendants, notice was ordered to be issued.

9. Notices issued to both the defendants were returned unserved with the endorsement that the defendants have shifted from the address given. On 8th August, 2016, fresh notice was ordered to be issued to the defendants. The plaintiff Bank however has not taken any steps therefor.

10. I have considered the application.

11. The plaintiff Bank has filed this application under Order XXXIV Rule 3(2)&(3) of CPC. Rule 3 of Order XXXIV of CPC provides for final decree “in foreclosure suit”. The plaintiff Bank in the plaint is found to have titled the suit as a “mortgage suit” “under Order XXXIV of CPC” and not specified whether it is a suit for foreclosure of the mortgage or for sale of the mortgaged properties. In para 32 of the plaint however the particulars of hypothecation and mortgage are given as under:

“4.	Property subject to hypothecation	Fabrics and Raw-materials, semi- finished and finished goods in the nature of garments and brass handicrafts, office equipments, swing machines, stock-in-trade etc.
5.	Property subject to mortgage	Land measuring 1008 sq. yrds. out of Khasra No.96/68 situated in the area and revenue estate of Village Holambi Kalan, Delhi State.”

12. The plaintiff Bank, in the prayer paragraph of the plaint, besides seeking a decree for recovery of monies due has sought “a decree for sale of the hypothecated properties and the mortgaged property (described hereinabove).... and sale proceed thereof be ordered to be paid to the plaintiff Bank a