Sabhahit, J.:— This appeal by defendant-7 is directed against the decree dated 17-4-1980 passed by the District Judge, Tumkur, in Regular Appeal No. 217 of 1977, on his file, affirming the order dated 25-8-1977 passed by the Principal Munsiff, Tumkur, in Original Suit No. 82 of 1959, on his file.
2. Original Suit No. 82 of 1959 was instituted by Mortgagor T. Gundappa for redemption of the mortgage and also for possession of two items of the properties bearing Survey Nos. 239 and 269 of Kasaba village, Tumkur Taluk. He obtained a decree for redemption. Defendant-7 filed an appeal and pursued the matter in Regular Second Appeal No. 155 of 1966 wherein this Court affirmed the preliminary decree passed by the trial Court and confirmed by the First Appellate Court. But, since defendant-7 raised a plea of tenancy, that issue was remanded to the First Munsiff's Court to be tried before the final decree for possession could be passed. After remand, the question of tenancy was tried and finding was given on 31-3-1973 holding that defendant-7 was not a tenant in respect of Survey No. 269. Thereupon, defendant-7 filed an appeal before the District Judge, Tumkur, in Miscellaneous Appeal No. 68 of 1973, which abated on 20-11-1974. By then, defendant-7 and twelve others filed a petition before the Land Tribunal to declare that they are the tenants. The Land Tribunal, Tumkur, gave its decision on 6-1-1977 declaring that the petitioners in that case were tenants in respect of Survey No. 239 belonging to Gundappa (plaintiff-1) and further holding that they were not tenants in any portion of Survey No. 269 belonging to plaintiff-2.petitioner. Subsequent to the decree dated 6-11-1973, Veeraiah (plaintiff-2) has purchased Survey No. 269 from plaintiff-1 and, as such, in the appeal filed by defendant-7 against the decree dated 6-11-1973, plaintiff-2 was added as respondent-2. After the termination of the proceedings before the Land Tribunal on 6-1-1977, the respondents/plaintiffs have filed I.A No. X under Order XXXIV Rule 8 of the Code of Civil Procedure, praying for a final decree for possession in respect of Survey No. 269 and also for enquiry into the mesne profits on the execution side. Defendant-7 contended that the application filed for final decree was barred by time as it had been made 3 years after the preliminary decree and after depositing the amount. The learned Munsiff, appreciating the contention, stated that the limitation runs from 20-11-1974 on which date the learned District Judge passed an order saying that Miscellaneous Appeal No. 68 of 1973 abated and not from 31-4-1971. Accordingly, he held that the application was not barred by time. Aggrieved by the said order, the contending defendant went up in appeal in Regular Appeal No. 217/1977 before the Civil Judge, Tumkur, and subsequently, it was withdrawn by the learned District Judge and was renumbered as Regular Appeal No. 41 of 1979, on his file. The learned District Judge, on hearing the appeal, affirmed the order passed by the trial Court holding that the application was not barred by time, by his decree dated 17-4-1980. Aggrieved by the said decree, defendant-7 has instituted the present second appeal before this Court.
3. Sri V. Krishna Murthy, learned Counsel appearing for the appellant, raised the same point, viz., that the application for final decree was barred by time, as the preliminary decree was passed on 6-11-1963 and the amount was deposited on 18-4-1964. According to him, under Article 137 of the present Limitation Act, the period of limitation for applications, which is not otherwise provided for, would be three years and, as such, he submitted that the Courts below were not justified in holding that the application was not barred by time.
That is the only point that arises for my consideration in this appeal.
4. It is a settled principle of law that the application for final decree can be made so long as the relationship of mortgagor and mortgagee subsists. In the case, M. Subramaniam Chettiar v. Muthiah Pillai(1), it is held that an application by the mortgagor/plaintiff for passing a final decree for redemption in his favour after paying the amount within the time fixed in the preliminary decree is covered by Order XXXIV Rule 8 of the Code of Civil Procedure and that the cause of action for such an application arises on payment and the period of limitation provided for such an application must be held to be governed by Article 181 of the Limitation and, according to the learned Judge, it is three years from the date of the deposit.
The learned Counsel for appellant pressed into service this decision in support of his case.
5. On the other hand, the learned Counsel appearing for the respondent invited my attention to the decision in the case, Paltan Matho v. Jagaru Mahto(2), wherein it is stated that Article 181 of the old Limitation Act would not apply for the purpose of preparation of a final decree, relying on A.I.R 1946 Patna 99 and A.I.R 1946 Madras 38.
6. It is a well established principle of law that an application for final decree could be made so long as the relationship of mortgagor and mortgagee subsists and the limitation is prescribed for redemption. It was earlier sixty years under the Old Limitation Act and it is made thirty years in the present Limitation Act. That being so, the residuary article, viz., 137, would not apply to the facts of the case.
7. It is no doubt true that if there is delay in depositing the amount as directed in the preliminary decree, the Court can extend the time for depositing such amount. There is no such question involved in this case as the amount was deposited in time. The application for final decree could be made at any time when the relationship of mortgagor and mortgagee is in existence. Therefore, the question of limitation does not arise on the facts of the present case. Moreover, as pointed out by the Courts below, the cause of action for D.F Application arose only after the tenancy question was settled as directed by this Court in the earlier remand order. The Courts below were, hence justified in passing the final decree as prayed for. I have no reason to interfere.
8. In the result, I am constrained to hold that the appeal is devoid of merits and is liable to be dismissed and I dismiss the same.
On the peculiar facts of the case, I make no order as to costs of this appeal.