Madras High Court
Tamil Nadu Mercantile Bank Ltd vs D.Appadurai on 2 August, 2018
Author: Anita Sumanth
Bench: Anita Sumanth
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02.08.2018
RESERVED ON : 16.07.2018
PRONOUNCED ON : 02.08.2018
CORAM
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
C.R.P.(PD)No.2153 of 2010
Tamil Nadu Mercantile Bank Ltd.,
Siruthondanallur Branch,
Through its Branch Manager. ... Petitioner/Petitioner
/Plaintiff
Vs.
D.Appadurai ...Respondent / Respondent/
Defendant
PRAYER : This Civil Revision Petition has been filed under Section 115 of
Civil Procedure Code, to set aside the order dated 06.11.2009 made in
I.A.No.618 of 2009 in O.S.No.175 of 1998 on the file of the District Munsif
Court, Srivaikundam.
!For Petitioner : Mr.B.Rajesh for
Mr.A.R.M.Ramesh
^For Respondent : Mr.S.Siva Thilakar
:ORDER
This Civil Revision Petition is filed by Tamil Nadu Mercantile Bank, challenging an order of the learned District Munsif, Srivaikundam, dated 06.11.2009 passed in I.A.No.618 of 2009 in O.S.No.75 of 1998.
2.On 23.06.1998, the plaintiff / petitioner filed a suit against the defendant / respondent seeking a preliminary decree directing the respondent to pay or deposit a sum of Rs.73,842 with interest and a final decree directing the mortgage of all schedule properties in Court auction towards realisation of the amounts outstanding as well as other reliefs.
3.The suit was contested by the respondent herein. On 03.04.2003, a preliminary decree was passed by the learned Sub-Judge directing the defendant to pay the outstanding within two months from the date of receipt of the preliminary decree.
4.It appears that the petitioner initially had omitted to file an application seeking a final decree along the lines of preliminary decree. The application for final decree came to be filed ultimately along with I.A.No.618 of 2009 seeking condonation of delay of 897 days in filing the application to pass final decree. The reason adduced for delay by the petitioner was that its counsel had inadvertently omitted to obtain a copy of the decree and furnish it to the petitioner in time. A copy was ultimately furnished to the petitioner by its counsel only on 17.10.2008.
5.The application for condonation of delay in filing an application for final decree was contested by the respondent on the ground that it was barred by limitation. According to the respondents a final decree application ought to have been filed within three years from the date of preliminary decree in terms of Article 137 of the Limitation Act, In this case, application has been filed with the delay of 897 days, which was not amenable to Section 5 of the Limitation Act. The petition seeking condonation was dismissed applying the rationale of a decision of this Court in the case of Sate Bank of India Vs. Kasim, Proprietor, M/s Kasira Stores, Big Bazaar Street, Triupattur, Ramantahapuram District and 10 others [2000?1-L.W.638] as against which the present CRP has been filed.
6.Detailed submissions of Mr.B.Rajesh for Mr.A.R.M.Ramesh, learned counsel appearing for the petitioner and Mr.S.Siva Thilakar, learned counsel appearing for the respondent have been heard.
7.On behalf of the petitioner, reliance is placed upon a judgment of the Supreme Court in the case of State Bank of India Vs. Vendanthangal Dairy Farm and others [(2000) 10 SCC 538] whereas the respondent relies upon the impugned order and the decision of this court in the case of State Bank of India Vs Kasim.
8. The legal issue that arises in this case is as to whether the provisions of Section 5 of the Limitation Act 1963 apply to an application for passing of final decree in terms of Order 34 of the C.P.C.
9. The issue is no longer res integra and this Court has dealt with the issue in various decisions of all which have been encapsulated by M.Srinivasan J in the case of S.Veluchamy Nadar Vs. Diravia Nadar and others [MANU/TN/0913/1991] while reiterating the settled proposition that Section 5 of the Limitatoin Act is applicable to applications under Order 34 Rule 5 of the CPC.
10. The earliest reported decision on this point is that of the Division Bench of this Court in Muhammad Hussain Sahib and another Vs. Abdul Karim Sahib (I.L.R. 39 Mad 544). Though the decision was originally interpreted to the effect that Article 181 of the Limitation Act 1908 would not apply to an application for passing final decree in a suit for mortgage, such misconception was cleared by a subsequent Division Bench in the case of Nimmala Mahankali Vs. Kallakuri Seetharamiah [32 M.L.J. 455]. The issue came up for consideration again in Subbulakshmi Ammal Vs. Ramanujam Chetty and four others ( I.L.R. 42 Mad 52), Mummadi Venkatiah Vs. Boganatham Venkata Subbiah [MANU/TN/0123/1921 : AIR 1922 Mad 65] and Rajamayyer Vs. Venkatasubba Iyer [AIR 1945 Mad 463].
11. Thus the consistent view taken by this Court in all the aforesaid decisions was thus that Article 181 of the Limitation Act 1908 would apply to an application for passing final decree under Order 34, Rule 5 of CPC and the period of limitation was three years from the date of the preliminary decree.
12. M.Sriviansan J, also refers to and distinguishes subsequent decisions in the case of Sivanpillai v. Anbaiyyan and others [1976 (1) MLJ 385] on the facts of that case. The unique position that arose therein was that the preliminary decree did not fix any time limit for the payment of money due and Ismail, J in that case thus concluded that the period of limitation had not commenced.
13. The issue has also come up for decision in two other decisions of this Court, The Kumbakonam Municipal Council, By its Chairman v. Poonachi Alias Habian Beevi [(1980) 2 M.L.J. 378] and P.Subramanian Pillai v. Vadivu Ammal and others [1988 2 L.W. 104] to the effect that Article 137 of the Limitation Act would apply to an application for passing final decree under Order 34 Rule 5 of CPC.
14.The above then, is the law laid down by this Court.
15. Moreover, the Supreme Court in the case of State Bank of India v. Vendanthangal Dairy Farm and others [(2000) 10 Supreme Court Cases 538] has settled the issue in the following terms:-
'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.
8.We, accordingly set aside the impugned judgment of the High Court as well as the order dated 19.12.1984 of the trial Court which had dismissed the applicant's application under Section 5 of the Limitation Act, 1963 and we direct the trial court to decide the said application under Section 5 on merits. The appeal is disposed of accordingly. There will be no order as to costs.?
16. The said judgment of the Supreme Court has been followed by the Andhra High Court in the case of State Bank of Hydrabad v. Y.Venkat Reddy [2002 (1) ALD 261].
17. The decision in the case of State Bank of India Vs, Kasim (supra) relied upon by the learned District Munsif to the effect that section 5 of the Limitation Act does not apply to an application for passing of final decree has been rendered prior to the judgement of the Supreme Court in the case of SBI Vs Vedanthangal (supra).
18. The provisions of Rule 5 of the Limitation Act are, on the face of the provision, applicable to any appeal or application other than applications under Order XXI of the CPC. In the present case, the preliminary decree has fixed a time limit for remittance of the amount due and as such the distinction made out by Ismail, J in the case of Sivan Pillai (supra) would not be applicable.
19.The Civil Revision Petition is allowed. The District Munsif, Srivaikundam will hear I.A.No.618 of 2009 on merits after due opportunity is afforded to the parties concerned and pass orders thereupon within a period of one month from the date of receipt of a copy of this order. Further proceedings, if any, will be completed within a period of one month thereafter. No costs.
To The II Additional Subordinate Judge, Tiruchirappalli .