ORDER
1. The present revision is directed against the dismissal of I-A.No.96/1998 in O.S. No. 46/1991 dated 26.7.2000 on the file of Senior Civil Judge, Bhongir, which was filed by the petitioner-plaintiff -State Bank of Hyderabad, L.B. Nagar Branch, seeking the indulgence of the court for condonation of 1445 days delay in filing an application for passing of final decree pursuant to a preliminary decree in a mortgage suit which was obtained against the respondent herein in O.S. No. 46/1991.
2. The brief facts of the case relevant for the purpose of disposal of the present revision in short are as follows:
3. The petitioner is a nationalized bank and obtained a preliminary decree against the respondent herein in O.S. No. 46/1991 on the file of Senior Civil Judge, Bhongir on 26.7.2000, for a sum of Rs. 3,28,755.35 ps. That the petitioner was to file the application for passing of final decree within three years from the date fixed in the preliminary decree for redemption. That in the present case, though the advocate had applied for C.C. of preliminary decree and obtained the same on 23.3.1994, and transmitted to the bank in April 1994, the Branch Manager misplaced the file and copy of the decree and as such steps could not be taken by petitioner earlier for passing of final decree. It was alleged in the affidavit filed in support of Section 5 petition that after the concerned file was traced and the same was sent to bank advocate for filing the application for passing final decree and in fact the application was filed on 16.1.1998 by which time there occurred delay of 1445 days, which was sought to be condoned under the present I.A.No-96/1998. Though notice was sent to the respondent in delay condonation petition, the respondent did not choose to contest or oppose the applications and remained ex parte. The court below having heard the petitioner and after perusing the affidavit, dismissed the petition under Section 5 of the Limitation Act on merits under various reasons. Aggrieved by thedismissal of I.A. No. 96/1998, the petitioner filed the present revision.
4. Initially notice was ordered to the respondent in the revision and here also the respondent remained ex parte. The revision petitioner was heard and taking into consideration the averments in the affidavit filed in support of the delay condonation petition in I.A. No. 96/1998 and also taking into consideration that respondent did not choose to deny the allegations in the affidavit, and the nature of proceedings being recovery of money by a nationalized bank, the revision petition was allowed by this court on 30.3.2001 by a short order. After pronouncement of the order, this court entertained a doubt whether Section 5 of the Limitation Act could be applied to final decree proceedings in mortgage suits, and whether Section 5 of the Limitation Act could be applied to the provisions of Order 34 of C.P.C. Then this court listed the matter, suo moto under the caption 'for being mentioned' and with the consent of the revision petitioner's advocate, recalled the earlier order dated 30.3.2001 and posted the matter for further hearing. As the respondent was not being represented through any counsel, Sri Yamarthi Chandra Sekhar, Advocate was appointed as Amicus Curiae to assist the court. In the backdrop of this, the revision petition is heard afresh.
5. It was contended by Sri K. Sarva Bhouma Rao Counsel appearing for the petitioner that the delay is only 365 days but not 1625 days as calculated by the court below, and that the petitioner explained the delay properly and sought for condonation of delay and that his application under Section 5 of the Limitation Act is maintainable.
6. Sri Yamathi Chandra Sekhar made his submissions tracing the legislative history of Transfer of Property Act, Civil ProcedureCode and the Limitation Act. It was submitted that under the Limitation Act, 1887 there was considerable difference of opinion among various High Courts as to limitation applications to an application for an order absolute in the case of mortgage suits. According to Transfer of Property Act, 1882, the procedure in suit for foreclosure, redemption, or sale was to pass a decree 'nisi' in the first instance and then order absolute. The Act did not contain any provision for passing of final decree in cases when payment was made in accordance with the provisions of preliminary decree. The phraseology and procedure gave room for conflicting views. The view according to Allahabad High Court in OUDH BEHARILAL v. NAGESHAR LAL, (1890) ILR 13 All. 278, is that an application for an order absolute was a proceeding in execution of the decree and an application for execution to which Article 179 of Indian Limitation Act, 1887, which correspondents to Article 182 of Indian Limitation Act, 1908 and present Article 136 of Indian Limitation Act, 1963. The view according to (1894) ILR 21 Calcutta page 818 AJUDHIA PERSHAD v. BALDEO SINGH, (1894) ILR 21 Cal. 818, was that an application for an order absolute for sale of mortgage property was under Section 89 of Transfer of Property Act and would not fall under Article 179 and like wise an application for an order absolute foreclosure. Such applications were not applications for execution as there was no decree capable of execution and so Article 178 (corresponding to Article 181) of the Limitation Act of 1908 and the present Article 137 of Act 36 of 1963 alone would apply and this view was expressed in ALI AHMAD v. NAZIRAN BIBI, (1902) ILR 24 All. 542. Yet another view was expressed in TILUCK SINGH v. PARSOTHEIN PROSHAD, (1895) ILR 22 Cal. 924, that such an application was not an application under Civil Procedure Code and neither Article 178, nor Article 179 could apply. It washeld in MADHABMANI DASI v. LAMBERT, (1910) ILR Cal. 796, that there was no limitation as it was an application in a pending suit but not under Code of Civil Procedure. In BATHUK NATH vs. MUNNI DEI, (1914) ILR 36 A 284, it was held that an application for an order absolute was an application to execute the conditional decree.
7. This controversy was resolved by the legislative intervention by transferring the provisions as to mortgage suits from the Transfer of Property Act to Civil Procedure Code. It was also provided in Rules 3(1), 5(1) and 8(1) of Order 34 C.P.C. that the application, which follows a preliminary decree, is one to obtain final decree, thus bringing it within the purview of Article 181 of the Act, 1908. Since then therefore an application to final decree for foreclosure or sale or redemption has not been an application for execution but has been governed by Article 181 of 1908 Act (and now by present Article 137 of 1963 Limitation Act) and as such the period of limitation is 3 years from the date on which the right to sue accrues. Thus the application for passing for final decree is not an application for execution, but has been governed by Article 181 of 1908 Act and Article 137 of 1963 Limitation Act as has been held in MUNNA LAL PARRUCK v. SARAT CHANDRA MUKERJI, AIR 1914 PC 150. The time fixed for application for final decree under Order 34, Rule 3 or 5 C.P.C. is that 'When the right to apply accrues'' that is to say from the day fixed in the preliminary decree for payment of mortgage money as held in SHIVA RAMULU v. SHERANAPP, ILR 57 AP 159. It was further held that when once time has begun to run it cannot be suspended by any proceeding in any court.
8. For better appreciation of the point that fell for consideration, the provisions ofRules 3 and 5 of Order 34 are extracted as under:
(3) Final decree in foreclosure suit (1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree-
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,-
(b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed in the said decree, and, also, if necessary, -
(c) ordering him to put the defendant in possession of the property.
(2) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.
(3) On the passing of a final decree under Sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged.
4.......
5. Final decree in suit for sale:--(1) where, on or before the day fixed or at any time before the confirmation of a sate made in pursuance of a final decree passed under Sub-rule (3) of this rule, the defendant makes payment into court of all amounts due from him under Sub-rule (1) of Rule 4, the court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order-
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,
(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary,
(c) ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this rule, the Court shall not pass an order under Sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in Sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five percent. Of the amount of the purchase money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.
(3) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt within the manner provided in Sub-rule (1) of Rule 4.
9. So Order 34, Rule 5(3) clearly mandates that where payment in accordance with Sub-rule (1) has not been made, the court shall on application made by the plaintiff in this behalf pass a final decree directing the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4.
10. Since no time has been prescribed by the provisions of Order 34, Rule 5, the application for passing of final decree has to be filed within three years from the date of expiry of period fixed in the preliminarydecree under Article 137 of Limitation Act, it being a residuary article.
11. It is necessary to refer to Section 5 of the Limitation Act, 1908, which is extracted as under:
Any Appeal or application for a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
In view of the said language in Section 5 of the Limitation Act, 1908 and also in view of the law laid down in the decisions in MAQBUL AHMAD v. ONKAR PRATAP, AIR 1935 PC 85, RAMAKOTAYYA v. SITHARAMASWAMI, AIR 1946 Mad. 381, it is clear that Section 5 of the Limitation Act does not apply to final decree proceedings in mortgage suits. But however it is obvious that those judgments were rendered, since in the old Act, Section 5 has no application to Order 34 C.P.C. Act does not apply.
12. Now, it is necessary to refer to Section 5 of the Limitation Act, 1963 and the same is extracted as under:
Extension of prescribed period in certain cases:--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
13. Now a reading of Section 5 under the old Act and under the new Act (i.e., Act 36 of 1963), it is clear that the scopeof Section 5 under the new Act is very vide in its amplitude and includes application under Order 34, Rule 5 C.P.C. In other words, Section 5 of the new Act, would apply to all applications, specifically barring application under Order 21 C.P.C.
14. Therefore, in view of the above, the decision rendered in MUNNA LAL PARRICK v. SARAT CHANDRA MUKERJI (supra) basing on Article 181 of the 1908 Act, which is corresponding to Article 137 of Act 36 of 1963 holds the field and enables application of Section 5 of Limitation Act, 1963 to applications under Order 34, Rule 5 C.P.C.
15. Sri Chandra Sekhar, Amicus Curie also brought to the notice of this Court a judgment of the Madras High Court in S. VELUCHAMY NADAR vs. DIRAVIA NADAR, 1991 (I) LW 502 (Mad.), wherein His Lordship Justice Srinivasan, as he then was, had elaborately considering the entire legal position and also taking into consideration, the Latin Maxim expressio units est exclusio alterius held that the provisions of Section 5 of the Limitation Act, 1963 could well be applied for Order 34, Rule 5 C.P.C.
16. Apart from this an attempt was made by Sri Chandra Sekhar that even assuming that within three years a final decree petition is not filed, and the right to apply for such final decree is lost, it is not as if the decree holder is left without a remedy. A second suit for redemption is maintainable and the provisions like Order 9, Rule 9 or Section 11 of C. P.C. (res judicata) or Order 23 Rules 1 and 2 of C.P.C. do not apply, as was held in SUBBA PAO v. RAJU, AIR (37) 1950 FC 1.
17. Therefore, the incidental question that arises for consideration is when a party is entitled under law to file a second suit for redemption, why not obtain a final decree from the same preliminary decree byinvoking Section 5 of the Limitation Act, 1963 in order to avoid multiplicity of proceedings and duplication of costs.
18. Added to the above, Sri Sarvabhouma Rao, learned counsel appearing for the petitioner relied on the judgment of the Apex Court in STATE BANK OF INDIA V. VEDANTHANGAL DAIRY FARM, : (2000)10SCC538 , wherein the Hon'ble Supreme Court held that under Section 5 of the Limitation Act, 1963, an applicant when filing an appeal or application, other than an application under Order 21 C.P.C., ask for delay in filing of the same being condoned.
19. Thus the provisions of Section 5 of the Limitation Act, 1963 could be invoked for seeking condonation of delay in filing application for passing of final decree.
20. Coming to the facts in the present case, admittedly, six months time was granted for payment of the decretal amount. As contended by the learned counsel for the plaintiff - bank as there is no specific period for filing of the application for passing of the final decree, Article 137 has to be(r) resorted to, and as per the said Article the period of limitation for the plaintiff -Bank to file application would commence only after completion of the three years from the date of completion of six months granted for payment of the decretal amount, but not from the date of the preliminary decree and as such the court below has committed error in computing the period of limitation.
21. From the affidavit filed in support of the delay condonation period the plaintiff - Bank stated that the delay was caused due to transfer of the officers and misplacement of the files and only after the intervention of the Sankranti Vacation, the application could be filed with a delay of 365 days. Obviously the plaintiff-bank has arrived at this figureafter excluding the period of three years permissible under Article 137 and also after excluding the period of six months granted for payment of the decretal amount by the defendant.
22. In my considered view, the reason offered by the plaintiff-bank for the said delay, is reasonable and further as the plaintiff is a nationalized bank dealing with public funds and in the interest of the public, the court below could have taken a liberal view and condoned the delay.
23. For the above reasons, the delay is condoned and the impugned order is set aside.
24. However, from the impugned order, the delay, after deducting the period of three years as contemplated under Article 137, and also the six months granted for redemption, is not clear, I feel it appropriate to remand the matter to the court below for calculating the exact number of days of delay in filing the application for passing the final decree and then pass appropriate orders.
25. Accordingly the revision petition is allowed. No costs.