Madras High Court
City Tower Benefit Fund Limited vs C.Vinayagam on 11 February, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 16.12.2014 Decided on : 20.02.2015 CORAM THE HONOURABLE MR. JUSTICE K.KALYANASUNDARAM C.R.P.(NPD).No.827 of 2014 City Tower Benefit Fund Limited, Rep.by its General Manager K.Madhanagopal 938 C, 1st Main Road, Anna Nagar East , Chennai 600 102. ... Petitioner .. Vs .. C.Vinayagam ... Respondent Prayer:- Civil Revision Petition filed under Section 115 of Civil Procedure Code against the judgment and decree made in I.A.No.142 of 2008 in O.S.No.252 of 2000 dated 11.02.2013 on the file of the Subordinate Judge, Arani, Tiruvannamalai District. For Petitioner : Mr.M.Krishnappan, Senior Counsel for M/s.R.Swarnalatha For Respondent : M/s.P.Seshadri ORDER
This Civil Revision Petition is directed against the order of the Sub Judge, Arani, Tiruvannamalai District passed in I.A.No.152 of 2008 in O.S.No.252 of 2000.
2. The petitioner is the plaintiff in the suit in O.S.No.252 of 2000. The suit was filed for recovery of Rs.97,114/-, on the basis of registered mortgage deed dated 06.01.1995. After contest, the suit was decreed and a preliminary decree was passed on 18.01.2005 directing the respondent to pay a sum of Rs.2,39,515.62 on or before 18.03.2005 and also directing the respondent to pay the interest for the principal amount of Rs.1,15,114/- @ 6% per annum failing which the plaintiff was permitted to file an application for final decree to bring the mortgage property for sale.
3. Indisputably, the respondent did not pay the amount to the plaintiff, as directed in the preliminary decree. Therefore, the plaintiff took out an application in I.A.No.142 of 2008 for passing final decree. The respondent filed his counter stating that the application is barred by limitation as per Article 137 of the Limitation Act. Subsequently, the plaintiff filed a petition to condone the delay of 172 days in filing the application to pass a final decree.
4. The Trial court returned the application on 01.08.2012 questioning the maintainability of the petition. Again on 03.09.2012, the petition was returned on the same ground. The application was represented on 06.09.2012 stating that the application is maintainable in view of the judgment of the Hon'ble Supreme Court in State Bank of India v. Vendanathangal Dairy Farm and Others, reported in 2000 (10) SCC 538. The trial court, dismissed I.A.No.142 of 2008 holding that the application is barred under Article 137 of the Limitation Act. Challenging the order, the present revision is filed.
5. Shri M.Krishnappan, learned Senior Counsel for the petitioner submitted that the petitioner had already filed an application under Section 5 of the Limitation Act and the trial court, after hearing the application on 25.08.2012, 27.08.2012 and 03.09.2012, reserved for orders on 18.01.2005, but without considering the condone delay application, passed final order in I.A.No.142 of 2008 and therefore the impugned order is liable to be set aside under Article 227 of the Constitution of India. The learned Senior Counsel, further submitted that as per the judgments reported in 2000 (10) SCC 538 and 2000 (5) SCC 248 [Sri Veera Hanuman Rice & Flour Mill and another v. State Bank of India, Ramachandrapuram, A.P] , the Court has got jurisdiction/power to condone the delay in filing the application for final decree.
6. Per contra, Sri P.Seshadri, learned counsel for the respondent submitted that as per the judgments in Sital Parshad and another v. Kishori Lal reported in AIR 1967 SCC 1236, State Bank of India v. Kasim reported in 1999 (3) CTC 109 and Monotosh Kumar Mitra v. Amarendranath Shaw reported in 2000 (2) SCC 672, the applications filed beyond the period of three years from the date of expiry of 18.01.2005 cannot be maintained. The learned counsel further submitted that the plaintiff filed the application for passing final decree on 11.07.2008, that the defendant filed his counter on 30.09.2008 stating that the application is barred by limitation but the application to condone the delay was filed after a lapse of four years. It is further contended that the revision is not maintainable and the petitioner has to file an appeal against the final order passed in I.A.No.142 of 2008.
7. It is not in dispute that the petitioner instituted the suit for recovery of money on mortgage and a preliminary decree was passed on 18.01.2005 and the final decree application was filed only on 11.07.2008, which is beyond the period of three years. In the decisions relied upon by the learned counsel for the respondent, it has been held that the applications filed beyond the period of three years cannot be maintained. It is not disputed that the petitioner filed an application to condone the delay of 172 days in filing the application for final decree. The trial court, instead of deciding the application on merits, returned even without numbering, on the ground of maintainability.
8. The Hon'ble Supreme Court, in a decision in State Bank of India v. Vendanathangal Dairy Farm and others reported in 2000 (10) SCC 538 has held as follows -
7. Under Section 5 of the Limitation Act, 1963 an applicant can when filing an appeal or an application, other than an application under Order XXI CPC, ask for delay in filing of the same being condoned. In the present case it is an application which was filed by the appellant under Order XXXIV Rule 2(1)(c)(ii) and therefore, Section 5 of the Limitation Act, 1963 was clearly applicable. This being so, the decision of the trial court rejecting the application under Section 5 only on the ground that the said provision did not apply is clearly incorrect.
9. Further, the Patna High Court, in a decision reported in AIR 1981 Patna 27 [Thakur Pandey v. Bundi Ojha and others] held that though the final decree was passed in an application filed after three years from the date of preliminary decree, it does not render the final decree void and without jurisdiction, which would run thus -
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The Supreme Court also in the case of Ittyavira Mathai v. Varkey "Varkey (AIR 1964 SC 907) observed that where a Court having jurisdiction over the subject matter and the parties, passes a decree, even if the suit was barred by time, such decree cannot be treated as a nullity and be ignored, as although the Court is bound to decide right, may decide wrong and even though it decides wrong, it would not be doing something which it! had no jurisdiction to do. The remedy of the aggrieved party was to get the decree set aside by preferring an appeal against it. It is no doubt true that Section 3 of the Limitation Act is peremptory in nature and enjoins a duty upon the Court to dismiss an application or suit filed after the period of limitation, it does not say that the Court shall not entertain them and where the Court does not give effect to the rule of limitation and thus fails to perform its duty, it cannot be said that the Court acted without jurisdiction. In that event, it commits an error of law and it is well settled that an error of law can be corrected only in accordance with the remedies provided under the procedural law. A Judgment or order may be bad in law but until and unless it is set aside it will hold good and would be operative and binding on the parties. No decision taking a contrary view was cited by the learned counsel for the respondents.
8. In view of the above discussion, I would hold that the final decree passed; in the title mortgage suit in favour of defendant No. 1 cannot be said to be nullity or without jurisdiction.
10. In the instant case, the trial court dismissed the final decree application on the only ground that the application was filed beyond the period of limitation. In the light of the decision of the Hon'ble Supreme Court cited supra, the trial court ought to have considered the application filed to condone the delay in filing the application for final decree. Hence, the order impugned in this revision cannot be sustained and the same is liable to be set aside and it is accordingly set aside.
11. In the result, this Civil Revision Petition is allowed. No costs. The trial court shall consider the application in I.A.No.152 of 2008 alongwith condone delay application and pass an order afresh, after giving ample opportunities to both the parties.
20.02.2015 Index : Yes rgr To The Subordinate Judge, Arani, Tiruvannamalai District.
K.KALYANASUNDARAM, J.
rgr Pre-delivery order in C.R.P.(NPD).No.827 of 2014 20.02.2015