1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.753 OF 2007 Yeshwant Ganpat Gaikwad successor in Title of Shri Chunilal Lochiram Khivasara since deceased through his heir Vasant Yeshwant Gaikwad : Appellant. Versus Yeshwant Rambhau Choundhe since deceased through his LRs. 1(a) Tanaji Yeshwant Choundhe & ors. : Respondents. Mrs.Anita Agarwal for the Appellant. Mr. P K Dhakephalkar.Senior Advocate with Mrs. Neha Bhide and I M Khairdi and Mrs. Usha Dahanukar for the Respondent Nos.16(a)(b) (c) and 18.. CORAM : C.L.PANGARKAR, J. DATE : 04th February 2010 P.C. 1. Heard the learned counsel for the appellant and the Respondents. 2. This Second Appeal has been preferred against the order passed by the Additional District Judge in Civil Appeal No.1004 of 1986 whereby he confirmed the order passed by the Civil Judge Junior Division, Pune on 17/1/1984. 2 3. The present appellant claims to have purchased the suit property from original mortgagee. The original mortgagee had executed a mortgage deed in the year 1924 in favour of the present Respondents. He latter filed a suit for redemption of mortgage. The said suit came to be decreed in the year 1959. Appeals were preferred before the District Court as well as before the High Court. The said preliminary decree was however confirmed by the High Court in Second Appeal on 11/7/1969. In pursuance to the said decree for redemption of mortgage, the present appellant deposited the sum secured in the Court on 21/1/1974. Before this amount was deposited in the Court, however, the present appellant had filed an execution proceeding in the Court of Civil Judge Junior Division on 30/10/1971. In the said execution proceeding, warrant of possession was issued which was challenged by the present respondents. It was contended that no warrant for possession could be issued because there was no final decree in the matter. This question as to whether execution could be filed and whether it was necessary to draw a final decree before it could be executed was contested by the party up to the High Court. The High Court confirmed that the present appellant was bound to make an application for final decree and preliminary decree could not be executed and therefore warrant was cancelled. 3 4. An application for final decree however was made on 26/6/1980. When this final decree application was made, an objection was raised by the present Respondents that it was barred by limitation. 5. The learned Judge of the trial Court found that the application was barred by limitation and impediment of Urban Land Ceiling Act did not come in the way. Holding so, he dismissed the final decree application. Appeal was preferred before the District Court which came to be decided by the Additional District Judge. The Additional District Judge also concurred with the findings recorded by the Civil Judge, Junior Division. He particularly found that the time could not be excluded under Section 14(2) of the Limitation Act. He, therefore, dismissed the appeal. Hence this Second Appeal. 6. The first contention of the learned counsel for the appellant before me is that there was no need to make an application for final decree at all. She submits that since there is no need to make an application for final decree and the final decree proceedings arise as a matter of course, there could be no limitation for such proceedings. 4 7. This submission however does not appear to me to be correct. After having gone through the provisions contained in Order 34 Rule 8, it is obvious that the party is required to apply for final decree after a preliminary decree is passed. That is also made clear in the provisions contained on para 714 of the Civil Manual. It is, therefore, obvious that a party is required to make an application for final decree where preliminary decree for redemption is passed. 8. The learned counsel for the appellant however submits before me that there is no specific article in the Limitation Act which covers the application for final decree. This submission is no doubt correct. When there is no specific article in the Limitation Act covering such application for final decree, one will have to resort to Article 137 which is known as a residuary article. Such application for final decree therefore must be held to be falling under Article 137 which prescribes limitation of three years. In the circumstances, it was rightly held by the Courts below that it was Article 137 which governs the application for final decree proceedings under order 34 Rule 8 of the Code of Civil Procedure. 5 9. The next ground that was urged by the learned counsel for the appellant before me is that Section 14 of the Limitation Act says that where the proceedings were prosecuted bonafide by a party, the period spent for prosecution such proceedings should be excluded. She submits therefore that when an application was moved for execution of the decree and it was prosecuted up to the stage of High Court, the period spent should be excluded by the Court. In this regard before referring to the decision as has been cited to me by the learned counsel for the Respondents, I may mention that even if it is assumed for the sake of arguments that section 14 applies, still action of the decree holder cannot be said to be bonafide. When the objection was raised after the warrant was issued by the judgment debtor that final decree ought to be obtained before a decree can be put to an execution, the decree holder did not care to find out whether it was necessary to make an application for final decree. In stead of doing that the decree holder went on prosecuting the appeal against the order as well as the second appeal before the High Court. In any case, therefore, the prosecution of the first appeal and the second appeal in the High Court for the second time could not be said to be bonafide act on the part of the decree holder. 6 10. In the decision reported in AIR 1935 Privy Council 85, in the case of Maqbul Ahmad and others v/s. Onkar Pratap Narain Singh and others. The Privy Council has observed as under :- “Second 14(2) provides : In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court appeal, against the same party for the same relief, shall be excluded where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. If the appellants were entitled to succeed in regard to the first period, that is, from 23rd December 1920 to 8th November 1921, having regard to the length of that period, that would be sufficient for them. Their Lordships however are of opinion that the Courts in India were clearly right in the way they dealt with the point. It is impossible to say, apart from any other objection, that the application to obtain execution under the preliminary decree was an application for the same relief as the application to the Court for a final mortgage decree for sale in the suit. That being so, it is not permissible, on the basis of S.14 in computing the period of limitation prescribed, to exclude that particular period. The second period is the period of long vacation.” 7 11. The Privy Council has specifically held that where an application for executing preliminary decree is dismissed subsequently, application for final decree if filed, former period cannot be excluded. This court in another decision in AIR (35) 1948 Bombay 185 in the case of Awappa Tatoba Chougule v/s. Datto Krishna Adke makes following observation in para 5 :- “It was argued that the application being evidently bona fide that was a point in favour of the decree holder. But bona fide is immaterial for the purposes of Art.182(5); see the decision of the Privy Council in 61 I.A.62. It would be material only if the case could be brought within S.14, Limitation Act. That it can be brought within S.14 is the last argument addressed to us on behalf of the decree holder. But unfortunately an application to make a decree final and an application for the execution of a decree are not applications for the same relief within the meaning of S.14(2). The section therefore cannot save limitation in this Case.” 12. In view of this, the period as was spent by the decree holder in prosecuting the execution proceedings cannot at all be excluded. The Courts below did not fall in error in dismissing final decree proceedings, 8 as barred by limitation. There is no other substantial question of law involved in this Appeal. There is therefore no substance in this Appeal, The same is dismissed in limini. [C.L.PANGARKAR, J]