An application for final decree in a mortgage suit for redemption is barred by limitation if it is not filed within three years from the date of deposit of the mortgage dues under Article 181 of the Limitation Act.

G. K. MISRA, J.

( 1 ) DEFENDANT is the petitioner. The facts leading to the Civil Revision are as follows: plaintiff-Opposite Party filed Original suit No. 278 of 1944 in the Court of the Munsif, Balasore for redemption of the mortgage by conditional sale d/- 27th July 1934 and the suit was decreed on 25th August 1946. The mortgage dues, payable by the mortgagor to the mortgagee, were deposited on 22nd September 1945. The decree of the learned Munsif was ultimately confirmed by the High Court in second appeal No. 342 of 1947 on 30th July 1951, and the High Court allowed six months' time for redemption from the date of the judgment. Plaintiff filed an application for making the decree final on 14th March 1957. The learned Munsif dismissed this application on 20th January 1959 holding that the application was barred by limitation under Article 181 of the Limitation act as the decree-holder-mortgagor failed to apply within three years of the deposit and that Section 5 of the Limitation Act had no application to this case. On appeal the learned Additional Subordinate Judge, Balasore, reversed the judgment of the learned Munsif holding that Section 5 of the Limitation Act had application and that the application for final decree was not barred by limitation. Without passing a final decree himself he passed the following decretal order :

". . . . . . . . . . . . . . . The plaintiff's petition to make the decree final is allowed and the final decree proceedings shall proceed thereafter from the stage where the learned lower Court rejected the plaintiff's application. "

Against this order dated 8th March 1961 the Civil Revision has been filed.

( 2 )

"mr. R. K. Mohapatra for the petitioner raises the following contentions: (i) the order of the learned Munsif dated 2oth January 1959 is not a decree but is an order under Order 34, Rule 8, Civil Procedure Code and is not appealable under order 43, C. P. C, Accordingly no appeal lay and the lower appellate Court illegally exercised jurisdiction not vested in it by law; and (ii) the view that Section 5 of the limitation Act applies to an application for making the decree final is contrary to law and the application for final decree not having been filed within three years of the date of deposit is barred by limitation under Article 181

Limitation Act. "

( 3 ) MR, A. B. Roy for the Opposite Party takes a preliminary objection that a Civil revision does not lie as the decree of the lower appellate Court D/- 8-3-1961 is appealable and that a second appeal lies.

( 4 ) I will first examine whether the order dated 2oth January 1959 of the learned munsif is a decree and as such appealable. Section 2 (9) C. P. C. defines 'judgment' which means the statement given by the judge of the grounds of a decree or order. Section 2 (2) C. P. C. defines 'decree' which means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The rest of the definition is not quoted as not being relevant for the purpose of this case. By the order D/- 2oth January 1959 the learned Munsif came to the conclusion that the petition for making the decree final was not maintainable as being barred by limitation. The effect of such order is that the plaintiff is not entitled to a final decree for the redemption which, ia essence, amounts to dismissal of plaintiff's suit for redemption. There can be absolutely no doubt that this order conclusively determines the right of the plaintiff in negativing his relief for redemption. Therefore, the order comes directly within the meaning of 'decree. '

( 5 ) IN order to be a 'decree' two essential legal requirements must exist. Firstly, there must be an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit; and secondly, suc