Maintainability of the petition filed after three years of passing of final decree.

V. Ratnam, J.

1. This Civil Revision Petition is at the instance of the Kumbakonam Municipal Council questioning the correctness of the order of the Court below dismissing an application filed by it under Order 34, Rule 5, Code of Civil Procedure, on the ground that the petition is barred by time. The petitioner instituted O.S. No. 446 of 1973, District Munsif's Court, Kumbakonam, for the recovery of arrears of property tax. According to the petitioner, a house in Pothamarai South Street, Kumbakonam town, belongs to the respondent and has also been assessed in her name. For the two half years 1971-72 and two half years 1972-73, the tax had remained unpaid in a sum of Rs. 2,345.20 p. and in spite of demands made by the petitioner, the respondent did not pay the same. Claiming that the house tax is a charge over the property under Section 85 of the Tamil Nadu District Municipalities Act and, therefore, the petitioner is entitled to collect the amount personally and also on a charge over the property in question, the petitioner laid the suit in O.S. No. 446 of 1973, District Munsif's Court, Kumbakonam, and prayed for a decree directing the respondent herein to pay the amount periodically and also for a charge preliminary decree over the property and for other incidental reliefs.

2. The respondent contended that the house had been leased to one Viswanathan Chettiar and as a result of an arrangement between her and the lessee, the property tax was liable to be paid by the lessee and such an arrangement had been earlier recognised and, therefore, the petitioner should have collected the property tax only from Viswanathan Chettiar and his heirs and not from the respondent.

3. The learned District Munsif, Kumbakonam, who tried the suit held that the petitioner is entitled to a preliminary decree for Rs. 2, 458. 65 p. with a charge over the suit property and costs. Three months' time was granted for payment of the decree amount passed in the suit. The clauses which would be relevant for a consideration of the controversy between the parties in the present revision are as under:

It is hereby declared that the amount due to the plaintiff on the charge mentioned in the plaint calculated upto 5th May, 1973 is Rs. 2,458.65, for the principal and Rs. 420.50 p. for costs of the suit awarded to the plaintiff making in all the sum of Rs. 2,879.15 p.

(i) It is further ordered and decreed as follows:

That the defendant do pay into Court on or before 22nd September, 1974 or any later date upto which time for payment may be extended by the Court the said sum of Rs. 2,879.15 p. with interest on Rs. 2,458. 65 p. at 6% per annum from 5th May, 1973 till date of realisation.

(ii) That on such payment and payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 11 of Order 34 of the I Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court, all documents in his possession or power relating to the charge of the suit property in the plaint mentioned and all such documents shall be delivered over to the defendant or to such persons as he appoints and the plaintiff if so required, re-convey or re-transfer the said property free from the charge and clear from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property.

(iii) And it is hereby further ordered and decreed that in default of payment as aforesaid, the plaintiff may apply to the Court for a final decree for the sale of the charged property and on such application being made the charged property or a sufficient part thereof shall be directed to be sold and for purposes of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his