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IN THE HIGH COURT OF ALLAHABAD
B. D. Agarwala, J.
BALJIT SINGH (DECEASED BY L.Rs) - Appellant
Versus
J.I.CUNNINGTON - Respondents
First Appeal 60 Of 1963
Decided On : 02/08/1984
LIMITATION ACT - ARTICLE 181 - APPLICATION FOR FINAL DECREE - U. P. ENCUMBERED ESTATES ACT, 1934 - SECTION 4 - APPLICATION FOR RELIEF - LIMITATION - TRANSFER OF PROPERTY ACT - SECTION 70 - ACCRETION.
Fact of the Case:
The Bank of Upper India Limited instituted a suit for recovery of a sum of rupees 23. 993-68 besides interest on the basis of a mortgage deed dated July 13, 1927. The property mortgaged comprised of share to the extent 2/5 in the zamindari properly situate in villages specified in Schedule a and. 2/5 share for bungalow No. 245 situate in Cantonment area, Meerut besides mango trees in the compound referred to in Schedule e to the plaint. The suit was decreed by the trial court on December 22, 1928. Some of the judgment-debtors filed an application under Section 4 of the U. P. Encumbered estates Act, 1934 on October 28, 1936. The decree-holder applied for the preparation of a final decree under Order 34, Rule 5 (3) C. P. C. on May 7, 1948 since there had been no payment made in terms of the decree by the judgment-debtors. On August 9. 1952, appellant-Brigadiar baljit Singh (since dead) made purchase of the bungalow No. 245 from Smt. Sarswati Devi by a registered deed for a consideration of Rs. 20,000/-. The preliminary decree dated 22-12-1928 was also obtained by him under assignment dated November 28, 1957 from the decree-holder. The application under Section 4 of the U. P. Encumbered Estates Act, 1934 (hereinafter referred to as the Act) was rejected on February 21, 1959. The application made under Order 34, Rule 5 (3) C. P. C. was opposed by the appellant on the ground that this was barred by limitation, the property referred to in the preliminary decree had ceased to exist and also that he is entitled to the benefits under Section 41 of the Transfer of Property Act.
Finding of the Court:
The application made by the decree holder on May 7, 1945 under Order 39, Rule 5 (3) C. P. C. was barred by limitation in view of the provision, contained in Article 181 of the Schedule to the Limitation Act, 1908; and (2) The properly under the mortgage referred to in the preliminary decree having ceased to exist there could be no, final decree for sale drawn in respect thereof.
Issues: 1. Whether the application for final decree was barred by limitation? 2. Whether the property under the mortgage referred to in the preliminary decree having ceased to exist there could be no, final decree for sale drawn in respect thereof?
Ratio Decidendi: 1. The application for final decree was barred by limitation as it was filed beyond the period of three years prescribed under Article 181 of the Limitation Act, 1908. The period of limitation commenced to run from the date on which the right to apply for final decree accrued, which was June 23, 1929, being six months from the date of the preliminary decree. The application made on May 7, 1948 was clearly barred by limitation. 2. The property under the mortgage referred to in the preliminary decree having ceased to exist, there could be no final decree for sale drawn in respect thereof. The mortgaged property comprised of share to the extent 2/5 in the zamindari properly situate in villages specified in Schedule a and. 2/5 share for bungalow No. 245 situate in Cantonment area, Meerut besides mango trees in the compound referred to in Schedule e to the plaint. The right, title and interest of the intermediary has vested in the State free from encumbrance and a decree-holder in respect thereof is, therefore, not in possession to proceed against the same. The appellant's interest is confined to the bunglow No. 245 situate in the Cantonment Meerut. The evidence on record shows that the entire construction is new and this was got rebuilt by him subsequent to the purchase which he made and that in the process, he has invested nearly Rupees 40,000/-.
Final Decision: The appeal was allowed and the application under Order 34, Rule 5 (3)C. P. C. was dismissed.
( 1 ) THIS appeal is directed against an order of the First Civil Judge, Meerut dated November 16, 1962 under Order 34, Rule 5 (3) of the Civil P. C.
( 2 ) THE facts relevant briefly stated are that the Bank of Upper India Limited (since liquidated), instituted O. S. No. 100 of 1927 in the Court of Sub Judge, Meerut for recovery of a sum of rupees 23. 993-68 besides interest on the basis of a mortgage deed dated July 13, 1927. The property mortgaged comprised of share to the extent 2/5 in the zamindari properly situate in villages specified in Schedule a and. 2/5 share for bungalow No. 245 situate in Cantonment area, Meerut besides mango trees in the compound referred to in Schedule e to the plaint, The suit was decreed by the trial court on December 22, 1928 A preliminary decree was passed under order 34, Rule 4 C. P. C. and the time granted to the judgment-debtors for payment of the decretal amount was up to June 22, 1929. The first Appeal No. 136 of 1929 filed by the defendants against the preliminary decree was dismissed by the High Court on May 14, 1936. Some of the judgment-debtors filed an application under Section 4 of the U. P. Encumbered estates Act, 1934 on October 28, 1936. The decree-holder applied for the preparation of a final decree under Order 34, Rule 5 (3) C. P. C. on May 7, 1948 since there had been no payment made in terms of the decree by the judgment-debtors. On August 9. 1952, appellant-Brigadiar baljit Singh (since dead) made purchase of the bungalow No. 245 from Smt. Sarswati Devi by a registered deed for a consideration of Rs. 20,000/ -. The preliminary decree dated 22-12-1928 was also obtained by him under assignment dated November 28, 1957 from the decree-holder. The application under Section 4 of the U. P. Encumbered Estates Act, 1934 (hereinafter referred to as the Act) was rejected on February 21, 1959. The application made under Order 34, Rule 5 (3) C. P. C. was opposed by the appellant on the ground that this was barred by limitation, the property referred to in the preliminary decree had ceased to exist and also that he is entitled to the benefits under Section 41 of the Transfer of Property Act. The objections were rejected and the applications for the preparation of the final decree was allowed by the court below under the impugned order. This appeal was decided by a learned single Judge of this Court ex parte on april 17, 1979. The application to set aside the ex parte order was rejected. In appeal filed by the appellant, the order was reversed by the Supreme Court on May 4, 1982, and this Court was directed to dispose of the appeal on merit
( 3 ) SRI A. D. Prabhakar, learned counsel for the appellant, has raised twofold contentions before me in support of this appeal :-- (1) The application made by the decree holder on May 7, 1945 under Order 39, Rule 5 (3) C. P. C. was barred by limitation in view of the provision, contained in Article 181 of the Schedule to the Limitation Act, 1908; and (2) The properly under the mortgage referred to in the preliminary decree having ceased to exist there could be no, final decree for sale drawn in respect thereof.
( 4 ) TAKING up ground No. 1 first, Article 181 of the Schedule of the old Limitation Act, 1908 read as under: 181. Applications for which no When the period of limitation is provided The right to apply elsewhere in this schedule or by re accrues. section 48 of the Code of Civil year procedure, 1908. s the corresponding Article 137 in the new Limitation Act, 1963 reads: 137. Any other Three When the application for which no years right to apply period of limitation is accrues. provided elsewhere in this Division.
( 5 ) UNDER the scheme of the Civil P. C. , Order 34, Rule 4 (1) makes provision for the court to pass a preliminary decree for sale of the mortgaged property and requires that the court shall also fix the time for the payment of the amount found due. In case on or before the date fixed, the payment is not made, Sub-
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