The applicability of Article 136 of the Limitation Act supersedes Article 137 for final decree applications, allowing exclusion of prior litigation periods in calculating limitation.

ORDER :

N. SENTHILKUMAR, J.

The present Civil Revision Petition has been filed challenging the order passed by the learned Principal Subordinate Judge, Kumbakonam, in I.A.No. 236 of 2019 in O.S.No.144 of 2004, dated 15.10.2022.

2.Heard Mr.K.Suresh, learned Counsel for the Revision Petitioner and Mr.S.Anand Chandrasekar, learned Counsel for the respondent.

3.The brief facts of the case are as follows:

3(1).The Revision Petitioner is the plaintiff in the suit in O.S.No.144 of 2004 on the file of the Principal Subordinate Court, Kumbakonam, and the respondent is the defendant in the suit. The said suit was filed for recovery of money due on the mortgage executed by the defendant. In the said suit, an ex parte decree was passed on 12.11.2009. Thereafter, the respondent/defendant filed an application in I.A.No.101 of 2010 to set aside the ex parte decree, dated 12.11.2009. In the said application, a conditional order was passed directing the respondent/defendant to deposit 1/3 of the decreed amount on or before 18.04.2011. Challenging the same, the respondent/defendant has preferred a revision petition before this Court in C.R.P(MD)No.2019 of 2011. This Court had dismissed the said petition with a direction to the respondent/defendant to comply with the conditional order passed by the trial Court in I.A.No.101 of 2010 on or before 30.11.2011. Challenging the said order, the respondent/defendant had preferred an SLP before the Hon'ble Supreme Court in S.L.P.No.35939 of 2012, which was also dismissed by the Hon'ble Supreme Court vide order, dated 09.01.2012.

3(2).Thereafter, the respondent/defendant had filed an application in I.A.No.215 of 2012 before the trial Court seeking permission to deposit 1/3 amount, which was also dismissed by the trial Court by order, dated 05.12.2012, against which, the respondent/defendant had preferred a revision petition before this Court in C.R.P(MD)No.555 of 2013. This Court had dismissed the said revision petition vide order, dated 02.07.2018. Thereafter, the revision petitioner/plaintiff had filed a final decree application in I.A.No. 236 of 2019 in O.S.No.144 of 2004. The learned Principal Subordinate Judge, Kumbakonam, vide order, dated 15.10.2023, had dismissed the said application on the ground of limitation. Challenging the said dismissal order, the plaintiff has preferred the present Civil Revision Petition.

4.Mr.K.Suresh, learned Counsel for the petitioner submitted that the trial Court has erroneously dismissed the final decree application on the ground of limitation without considering the fact that the respondent is litigating the issue upto 02.07.2018 before this Court as well as before the Hon'ble Supreme Court. He further submitted that the trial Court has failed to consider that the execution of civil Court decree by way of final decree application cannot be come under the ambit of residuary clause under Article 137 of the Limitation Act .

5.He also lamented that after passing of the preliminary decree, the respondent/defendant had litigating the issue till 02.07.2018 before this Court as well as before the Hon'ble Supreme Court and that the limitation would start only from 02.07.2018 and that the litigating period has to be excluded, while calculating the limitation period. However, the trial Court without considering the explanations offered by the revision petitioner/plaintiff, has erroneously dismissed the final decree application, which is per se illegal and needs interference of this Court.

6.He also pointed out that when the final decree application was filed before the trial Court, the trial Court has numbered the said application, heard the parties and the