Limitation for final decree in a mortgage suit runs from the appellate decree when the preliminary decree is appealed

In a mortgage suit, limitation for an application for a final decree under Article 181 of the Limitation Act, 1908 runs from the date when the preliminary decree becomes conclusive between the parties. Where an appeal is filed against the preliminary decree, the appellate decree is the operative and conclusive decree, so time begins from the appellate determination rather than from the date fixed for payment in the original decree. On that basis, the final-decree application was within time and not barred by limitation.

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Issues: Whether, for an application for a final decree in a mortgage suit, limitation under Article 181 of the Schedule to the Limitation Act, 1908 begins to run from the date fixed for payment in the original preliminary decree or from the date of dismissal of the appeal against that decree.

Analysis: The right to apply for a final decree arises only when the preliminary decree has become conclusive between the parties. Where an appeal is preferred against the preliminary decree, the decree of the appellate court becomes the operative decree in the cause. The limitation period for the application must therefore be computed from the date when the appellate decree is made, not from the expiry of the time fixed under the original preliminary decree.

Conclusion: Limitation ran from the date of dismissal of the appeal. The application for the final decree was not time-barred.

Final Conclusion: The appeal failed and the respondent's position on limitation was upheld, so the dismissal of the appeal followed.

Ratio Decidendi: When a preliminary decree in a mortgage suit is appealed from, the appellate decree is the decree that becomes conclusive between the parties, and limitation for an application for a final decree under Article 181 runs from that appellate determination.

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