Article 137 of the Limitation Act applies to an application for passing a final decree in a suit on a mortgage. The period of limitation for such an application is three years from the date of the preliminary decree.

1. I would have disposed of this revision petition with a very short order but for a valiant attempt made by learned counsel for the petitioner to overthrow an unsurmountable stare decisis in relation to a principle of law accepted for over seventy five years. No doubt, he failed to convince me, but I must place on record my appreciation for die presentation of the matter in a different perspective warranting a fresh look.

2. The short facts are these: The petitioner obtained a preliminary decree on a mortgage on 24.4.1982 against the respondents. In the preliminary decree, the Court granted time to the defendants upto 24.5.1982 for paying the amount due under the decree to the petitioner. The defendants did not make any payment and the petitioner filed an application for passing of final decree on 23.4.1986. The petitioner also filed Application No. 782 of 1988 under S. 5 of the Limitation Act for condonation of the delay in filing the application for passing final decree. The only reason given in the affidavit filed in support of the application for the inordinate delay of nearly a year was that the petitioner was conducting the case on behalf of all the mortgagees and he had to go out of town on some work and he could not file the application for final decree in time.

3. The trial Court held that S. 5 of the Limitation Act would not apply to an application under O. 34, R. 5 of the Code of Civil Procedure. However, the trial Court went into the merits of the application and held that the petitioner did not make out sufficient cause for not filing the application in time. Consequently, the application filed by the petitioner was dismissed. This revision is directed against the said order.

4. Learned counsel for the petitioner contends that the Court below is in error in holding that S.S of the Limitation Act does not apply to applications under O. 34, R. 5 of the Code of Civil procedure. I have no difficulty in agreeing with him. The view taken by the Court below is clearly erroneous. S.S of the Limitation Act will apply to any appeal or any application other than an application under any of the provisions of O. 21 of the Code of Civil Procedure. The language is wide enough to include applications under O. 34, R. 5 of the Code of Civil Procedure. The Court below has observed that the petitioner has not produced any judgment in support of his contention that S. 5 of the Limitation Act would apply. When the language of S. 5 of the Limitation Act by its own force would apply to all applications excepting those under O. 21, Code of Civil Procedure, there is no justification for holding that applications under O. 34, R. 5 of the Code of Civil Procedure are not covered by the Section.

5. It appears that reliance was placed by the respondents in the Court below on a judgment of the Orissa High Court in Bhagabat Sit v. Balaram Sit 1. In that case, it is observed that S. 5 of the Limitation Act has no application to Applications under O. 34, R. 8 of the Code of Civil Procedure. The relevant passage in the judgment reads as follows:

“It is undisputed that S. 5 has not been made applicable to an application under Order 34. There can be therefore no controversy that S.S has no application to this case”

It is not necessary for me to express any opinion on the correctness of the view taken by the Orissa High Court, as it was a case under the Limitation Act of 1908, prior to the introduction of Limitation Act of 1963. Under the present Act, the section expressly excludes only applications under O. 21 of the Code of Civil Procedure. Hence, it will apply to all other applications under the Code of Civil Procedure. The latin Maxim expressio unius est exclusio alterius will apply.

6. On the merits of the application, I agree with the Court below that the petitioner has not made out a case for condonation of delays of nearly a year. The reason given by him that he was out of town during the relevant period is hardly acceptable. Admittedly