Mummadi Venkatiah v. Boganatham Venkata Subbiah

We are unable to agree with the learned Subordinate Judge in this case. The application of 9-10-1913, E.P No. 1244 of 1913 did no doubt ask for ‘order absolute’ and we take it that it meant final decree. But that application was dismissed, it may be quite erroneously. The petitioner's remedy then was to appeal against that order, (see Subbalakshmi Ammal v. Ramanujam Chetty); he did not do so. The order cannot in our opinion be treated as ultra vires as the lower appellate Court says, however erroneous it might be, nor can we agree that the petition is to be treated as one that can be revived because it was wrongly disposed of. The theory of revival involves as assumption that the petition was not disposed of but was somehow pending. Error of law in the disposal of a petition does not involve such a position. On the above view, the 2nd application for a final decree which is the one before us is an incompetent application.

There is the further difficulty that the present application is barred by limitation, having been filed more than 3 years from the date when the right to apply accrued; that is the date fixed for payment under the preliminary decree. It is now settled that such applications under the present Code are applications in the suit itself and not execution applications and Art. 181 of the Limitation Act applies to them. See Pattabhirama Naidu v. Subramania Chetty. On this ground also plaintiff's application fails.

It is unfortunate that the plaintiff's legal advisers failed to realise what the proper procedure in this case was in time and plaintiff has thus lost the fruits of his mortgage decree but we are unable to help him.

The order of the lower appellate Court is set aside and the order of the Munsif is restored with costs here and in the Court below.

C.KAppeal allowed.