Court interpretation establishes that limitation laws do not bar applications for final decrees in pendency of mortgage suits following preliminary decrees.

O R D E R

Challenging the Order of the Execution Court rejecting the application filed to enforce the preliminary decree passed in a mortgage suit, the present Civil Revision Petition has been filed.

2. Since the Execution Court has returned the Execution Petition without numbering, no notice is required to be sent to the respondents. The respondents may agitate with regard to the limitation in the Execution Petition.

3. According to the petitioner, he had filed a suit in O.S.No.302 of 2008 for recovery of money along with interest on the basis of the mortgage deed executed by the defendant. In the said suit, a preliminary decree has been passed on 27.09.2012 with a direction to pay the mortgage money within a period of six months. That six months expires on 27.03.2013. Thereafter, it appears that an application has been filed on 27.08.2024 for passing of the final decree. The trial Court has returned the application on the ground that the final decree application has been filed beyond the period of limitation.

4. It is relevant to note that in a judgment of the Division Bench of this Court in A Partnership Firm and others Vs. State Bank of India reported in 2018 [5] CTC 353, this Court has held as follows :

“28. It is pertinent to note that whether it is a suit for partition or a suit for dissolution of partnership and accounts or a suit on a mortgage, the suit does not terminate on the passing of the preliminary decree, but terminates only on the passing of the final decree.

29. In a suit on a mortgage, after the passing of the preliminary decree, if the decree holder-plaintiff does not apply for the passing of final decree within the period prescribed by Article 181 of the old Limitation Act or Article 137 of the new and on that ground the said application was dismissed as barred by limitation, what happens to the pending suit itself does not appear to have been considered so far. If the analogy of the partition suit is taken, once a preliminary decree declaring the shares of the parties has been passed, that suit is said to be pending till a final decree is passed. There being no period of limitation prescribed for filing an application for final decree in a suit, the suit will be pending till the final decree is actually passed and there is no compulsion on any of the parties to the preliminary decree to apply for a final decree within a particular time. Therefore, with regard to a suit for partition, once a preliminary decree has been passed, it has to be adjourned sine die with liberty to any of the parties to whom shares have been allotted to apply for the passing of a final decree. If the parties to whom shares have been allotted under the preliminary decree do not apply for the passing of a final decree within a reasonable time, the Code does not confer a power on the Court to dismiss that suit on the ground that nobody has applied for the passing of the final decree, either suo motu or on the application of any one of the parties to the suit.

30. Order XXXIV of the Code of Civil Procedure elaborately deals with the manner of disposal of a suit on a mortgage, but, it does not contain any provision for dismissing a suit on a mortgage in which a preliminary decree has been passed already, on the ground that the plaintiff had not applied for the passing of a final decree within the time prescribed by law, either suo motu or on the application of the judgment-debtor.

31. As a matter of fact, once the application made by a plaintiff for passing a final decree is dismissed on the ground that it is barred by limitation, we are left with a peculiar and nebulous position of the suit being still pending and the preliminary decree already passed not having been cancelled, but at the same time, the plaintiff