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Khichu & Ors. v. Lachhman @ Pyare & Ors. - RSA-1659-2006 [2006] RD-P&H 4651 (24 July 2006)

RSA No.1659 of 2006. :-1-:


R.S.A. No. 1659 of 2006.

Date of Decision: July 18 ,2006.

Khichu & Ors. ...Appellants.


Mr. R.K.Jain, Advocate


Lachhman @ Pyare & Ors.



1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in the Digest? SURYA KANT,J.

This judgment shall dispose of RSA Nos. 1659 to 1663 of 2006 which have arisen out of a common judgment and decree dated 21.2.2006 passed by the first Appellate Court, which in turn arose out of the judgment and final decree dated 11.4.2003 passed by learned Civil Judge (Junior Division), Palwal whereby objections against the preliminary decree passed in a suit for possession by way of redemption of mortgage, were turned down and final decree was passed. The origin of this lis is traceable in the year 1968 when civil suits No. 183, 477, 479 to 482 of 1968 and Civil Suit No.471 of 1969 for possession by way of redemption of mortgaged property were filed by Sri Chand and others, predecessors-in-interest of the respondent-plaintiffs herein.

The afore-stated civil suits were dismissed by learned trial RSA No.1659 of 2006. :-2-:

Court vide a common judgment and decree dated 31.3.1971. Aggrieved, the plaintiffs filed Civil Appeal Nos. 71,72,82,84 and 86 of 1972 which were allowed by the then District Judge, Gurgaon vide his judgment and decree dated 1.6.1973 and a preliminary decree for possession by way of redemption in respect of the suit land was passed in favour of the respondent-plaintiffs, "subject to their deposit of the redemption amounts pertaining to the respective suits".

The appellants and/or their successors-in-interest preferred RSA Nos. 961,987,988,1027,1028 and 1029 of 1973 in this Court. These appeals were dismissed by a common judgment dated 21.9.1979 on the ground that one of the appellants-Shiv Lal had died and his legal representatives were not brought on record and as such his appeal had abated. Holding that if the connected appeals which too had arisen out of a common judgment founded upon common grounds are allowed, it would result in contradictory decrees, this Court dismissed all the appeals. The appellants herein then took up the matter before the Hon'ble Supreme Court through Civil Appeal Nos.1131 and 1272 to 1276 of 1981. These appeals, however, were also dismissed by the Apex Court vide a common judgment dated 15.2.1999.

Thereafter, the respondent-plaintiffs filed application dated 3.4.1999 for passing of the final decree in terms of the preliminary decree dated 1.6.1973 passed by the first Appellate Court. The appellants contested the aforesaid application, inter-alia, alleging that the said decree was obtained by fraud; after the death of Smt. Durga Devi, the land was mutated in favour of Smt. Kapuri Devi, Smt. Laxmi @ Lachhi and Charan Singh adopted son of Rattan Singh, though the latter never adopted Charan Singh RSA No.1659 of 2006. :-3-:

and a wrong entry was manipulated by Charan Singh in his favour which is null and void; that the application for final decree has not been filed within the period of limitation of three years and is time barred. Learned trial Court vide its order dated 11.4.2003, however, did not find any merit in these objections which were turned down and a final decree for possession of the suit land to the extent of 279/288th

share was passed in favour of the

respondent-Decree Holders.

Before the first Appellate Court, the appellants reiterated the two contentions, namely, (i) the application for passing of the final decree was time barred as the same was not filed within three years of the passing of the judgment dated 1.6.1973 as required under Article 137 of the Limitation Act, 1963; (ii) Charan Singh was never a legally adopted son of Rattan Singh and was erroneously shown to be one of the successors-in- interest.

Both the contentions, however, having been rejected by the first Appellate Court vide its impugned judgment and decree dated 21.2.2006, that the appellants-Judgment Debtors have approached this Court.

I have heard Shri R.K.Jain, learned counsel for the appellants at length who has reiterated both the contentions raised on behalf of the appellants before the first Appellate Court. It is argued that the preliminary decree was passed by the first Appellate Court on 1.6.1973 and redemption amount of Rs.354.25 Paise having been deposited by the respondent-Decree Holders on 17.7.1973, the application for passing of a final decree was required to be moved by them within three years from the date of deposit of decretal amount in terms of Article 137 of the Limitation Act, 1963.

RSA No.1659 of 2006. :-4-:

According to Shri Jain, the said application was admittedly moved on 3.4.1999, therefore, it was hopelessly time barred. Reliance has been placed by him upon a Division Bench judgment of this Court in the case of Baldev Singh & Ors. V Kishan Singh represented by Lrs and Ors., 1991 PLJ, 692.

Half heartedly, he also raked up the issue of adoption of Charan Singh and contended that a civil suit challenging the said adoption has already been filed by the appellants and passing of the final decree is liable to be kept in abeyance till the decision of the said civil suit.

Taking up the second contention first, it is the conceded position that Charan Singh's claim as an adopted son of Rattan Singh is based upon a consent decree dated 31.3.1971. Apart from the fact that the ground to challenge the said decree was available to the appellants in the very first round of litigation, it is not denied by them that the said decree has not been declared nullity or set aside by any competent Court till date. The appellants, therefore, can not be permitted to rake up this issue at this stage on the pretext that earlier their Appeals were dismissed by this Court and the Hon'ble Supreme Court on the technical ground of abatement.

So far as the first contention as to whether or not the application for passing of final decree moved by the respondent-Decree Holders is barred by limitation, true it is that in the absence of any express provision contained in the Limitation Act, 1963, Article 137 shall hold the field and in terms thereof the period of limitation is three years. However, Article 137 unequivocally provides that the period of limitation of three years shall start "when the right to apply accrues". The expression "right to apply accrues" acquires significance in the context of the case in hand.

RSA No.1659 of 2006. :-5-:

There is no denial to the fact that the appellate Court judgment and preliminary decree dated 1.6.1973 were impugned by predecessors-in- interest of the appellants before this Court and their appeals were dismissed on 21.9.1979. The appellants then approached the Apex Court and filed Civil Appeals, as noticed earlier. These appeals were finally dismissed by their Lordships of the Supreme Court on 15.2.1999 and a communication sent by the Joint Registrar, Supreme Court of India, to the Civil Judge at Palwal specifically mentions the fact that "the stay orders earlier passed in the said appeals stood vacated". There can, thus, be no doubt that the right to apply for final decree accrued in favour of the respondent-plaintiffs only when challenge to the preliminary decree came to an end on 15.2.1999. The application for final decree moved by the respondents on 3.4.1999, thus, can not be termed as barred by limitation as provided under Article 137 of the Limitation Act.

Learned counsel for the appellants, however, vehemently contended that the respondents have failed to prove that there was any interim stay by this Court during the pendency of Regular Second Appeals No. 961,987,988, 1027, 1028 and 1029 of 1973. The aforesaid contention too does not cut much ice. The objection that the application for passing final decree was time barred, was taken by the appellants. The onus was upon them to summon the records and to prove that there was no interim stay by this Court and as such after depositing the decretal amount on 17.7.1973, the respondent-plaintiffs could apply for the final decree.

Nothing of the sort has been proved by the appellants. In the absence of a positive stand taken by them and/or evidence to this effect that there was no legal embargo in the respondents' way to get the final decree passed, their RSA No.1659 of 2006. :-6-:

objection which appears to be based on conjectures and surmises, has rightly been repelled by the Courts below.

In Baldev Singh's case (supra) a preliminary decree for redemption of the suit land was passed on 30.11.1963. However, before the decretal amount could be deposited, the mortgagee-defendants approached the High Court in first appeal in which passing of the final orders on the application under Order 34 Rule 8 C.P.C. was stayed. The appeal was finally dismissed on 20.11.1973. It was thereafter that the decree-holder moved an application on 3.12.1973 for extension of time for depositing the decretal amount which was granted to him and he was directed to deposit the same upto 3.2.1974. Thereafter, he moved an application for passing of the final decree on 4.11.1974. Rejecting the mortgagee- defendants'-appellants' contention on the point of limitation, the Letters Patent Bench held as follows:-

"So far as the application filed by the plaintiff-respondents under Order 34 Rule 8 of the Code for the passing of the final decree is concerned, the same no doubt was governed by Article 137 of the Limitation Act, but, in terms of the same the time against them was to run from the date when the right to apply had accrued to them, i.e., after the deposit of the decretal amount which they did on 1.2.1974. The application was filed by them on 4.2.1974. It is axiomatic that prior to the depositing of the amount they could not file any such application for the passing of the final decree. Since the amount was deposited by the mortgagors within the extended time, no fault could either be found with the deposit or with their prayer for the passing of RSA No.1659 of 2006. :-7-:

the final decree, as has been held by the two Courts, i.e., the trial Court and the learned Single Judge".

The ratio-discendi of the cited judgment also does not come to the appellants' rescue.

In view of the above discussion, I do not find any merit in these appeals which are accordingly dismissed.

July 18, 2006. ( SURYA KANT )

dinesh JUDGE


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