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1 - 4 of 4 (0.20 seconds)Thakur Pandey vs Bundi Ojha And Ors. on 6 March, 1980
The Honble Supreme Court made a distinction
between a final decree in a partition suit and a final decree in mortgage suit
and held t the effect that in the latter the law of limitation would apply to
the decision alluded by the Supreme Court in the above excerpt rendered by
Patna High Court in Thakur Pandey v. Bundi Ojha in AIR 1981 Pat
27 clearly recognized the truth that application for final decree made after
three years from the date of preliminary decree in a mortgage suit was barred
by limitation. It is altogether a
different matter that the said judgement in respect of which such a finding did
not hold such a decree altogether a nullity.
Saiyid Jowad Hussain vs Gendan Singh on 15 June, 1926
The
appellant contends that when a preliminary decree is passed in a partition
suit, a right enures to the plaintiff to apply for a final decree for division
of the suit property by metes and bounds; that whenever an application is made
to enforce a right or seeking any relief, such application is governed by the
law of limitation; that an application for drawing up a final decree would be
governed by the residuary Article 137 of the Limitation Act, 1963 (the Act
for short) which provides a period of limitation of three years; that as such
right to apply accrues on the date of the preliminary decree, any application
filed beyond three years from the date of preliminary decree ( that is
12-3-1964) or at all events beyond three years from the date when the High
Court dismissed the defendants appeal (that is, 29-3-1974) would be barred by
limitation. Reliance was placed by the
petitioner on the decision in Sital
Parshad v. Kishori Lal AIR 1967 SC 1236,
the decision of the Privy Council in Jowad
Hussain v. Gendan Singh (1925-26) 53 IA 197:AIR 1926 PC 93 and a decision of the Patna High Court in Thakur Pandey v. Bundi Ojha in AIR 1981 Pat 27 in support of his contention.
The Limitation Act, 1963
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