No limitation prescribed for filing Application for passing Final Decree under Order 34, Rule 5 of CPC

Citation

2018 (5) CTC 353 (Mad)

IN THE HIGH COURT OF MADRAS

V.K. Tahilramani, C.J. & M. Duraiswamy, J.

W.P. No.20022 of 2018.

September 06, 2018

A Partnership Firm, Rep. by Its Partners, No.20, Beerbal Nannumiyan Street, Tirupattur, Vellore-635 601.; B. Abdul Malick.; J. Magbool.; A. Abdul Haleem.; A. Fatima Malick.; B. Azeez Sultana.; J. Sobia Nawaz.; J. Sobia Rafeeque.; J. Sahistha Salma.; J. Shargil Ahmed.; K.M. Shahul.; K.M. Habeeb.; K. Thasin.; K. Noosin.; K. Shabro.; K.M. Habeb... Petitioners K. Paramaswaran Pillai (Dead)

Vs.

Petitioner

Diams; K. Sumathi Alias Jesis Jessie Jacquiline, Cdj 1993 Sc 1015. [para. 5] State Bank of India, Rep. by Chief Manager, Krishnagiri Road, Tirupattur.

...Respondent

Limitation Act, 1963 (36 of 1963), Artides 136 & 137 Code of Civil Procedure, 1908 (5 of 1908), Order 34, Rule 5 Constitution of India, Artide 226 Civil Court granted Preliminary Decree for Recovery of debt due to Mortgagee Bank in 1993- Application for Final Decree filed by Bank before Debt Recovery Tribunal in 2004, after 11 years Whether barred by imitation- Applicable limitation period Preliminary Decree can be passed under Order 34, Rule 5, CPC directing payment of mortgaged debt amount No limitation prescribed for filing Application for passing Final Decree under Order 34, Rule 5 of CPC limitation period prescribed under Article 136 of Limitation Act for execution of any Decree or Order of Civil Court is 12 years In Suit on Mortgage Preliminary Decree conclusively determines right of parties with regard to matters in controversy Final Decree must be passed to give effect to Clauses in Preliminary Decree Held, Suit on Mortgage does not terminate on passing of Preliminary Decree, but terminates only on passing of Final Decree Limitation Act only bars remedy and does not extinguish rights of parties Limitation Act should not defeat just and valid claim of Bank which has now crystallized on adjudication by Competent Court Preliminary Decree covered under definition of debt under Section 2(g) of Recovery of Des due to Banks and Financial Institutions and within meaning of Decree under Section 31-A of said Act Article 136 of Limitation Act would apply Bank's Application is within 12 years' limitation period. prescribed under Article 136, hence not barred Certificate of Recovery must be issued and executed just like money Decree Respondent Bank being custodian of Public money cannot be deprived of fruits of Judgment and Decree in its favour Decision of Debt Recovery Appellate Tribunal holding Article 136 of Limitation Act applies is confirmed Writ Petition dismissed-Recovery of Debts due to Banks and Financial Institutions Act, 1993 (51 of 1993), Sections 2(g) & 31 A.

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