MONOTOSH KUMAR MITRA (DEAD) BY LRS. versus AMRENDRANATH SHAW (DEAD) AND ORS.

Citation: [2000] 1 S.C.R. 1023 · Decided: 17-02-2000 · Supreme Court of India · Bench: S. SAGHIR AHMAD, Y.K. SABHARWAL

Judgment (excerpt)

MONOTOSH KUMAR MITRA (DEAD) BY LRS. 
v. 
AMRENDRANATH SHAW (DEAD) AND ORS. 
FEBRliARY 17, 2000 
[S. SAGHIR AHMAD AND Y.K. SABHARWAL, JJ.] 
Be11gal Money Lenders' Act, 196()-Section 34(1) and (2}-Preliminary 
decree passed subject to the provisions of the AcH.!11der the decree, decreetal 
amount was to be paid in four instalmellts-Def au/ts in payment of all the 
four instalments-Notice to defendant for all the four def au/ts committed by 
the defendants and it was not stated that a11y def a ult was waived or con-
doned-Held, notwithstanding the dates of all the four instalments having 
been fixed u11der the preliminary decree, right accrued to the plaintiff to apply 
A 
B 
c 
for final decree on def a ult committed by the defendants in payment of the 
amount of the first instalment:-Plaintiff cannot extend the period of limitation D 
by delaying service of notice on default under Section 34-Fwther, it was not 
required to go into the question whether in law plaintiff could at all waive or 
condone the default for the purposes of Limitation Act-Limitation Act, 1963, 
Residuary Article 137. 
Code of Civil Procedure, 1908---0rdcr 34 Rules 2 and <f-Application 
for final decree-Time limit to apply for-Held, Plaintiff entiiled to apply for 
final decree directing saie of the mortgaged property as stipulated by Rule 4 
if defendant failed to pay the mortgaged amount within 6 months stipulated 
in the preliminary decree. 
In a mortgage suit, a preliminary decree was passed in favour of the 
appellant on 18.11.1968 under which the entire sum was directed to be paid 
in four instalments. The first instalment was payable on or before 31.3.1969 
and subsequent instalments by 31st March of each succeeding years. Thus 
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F 
last instalment was payable on 31.3.1972. The decree further stipulated 
that in case of default of payment or any one of the instalment, the G 
plaintilT/appellant was given the liberty to apply the court for final decree 
for sale of mortgaged property, subject to the provisions of Bengal Money 
Lenders' Act. On failure of the defendants to pay any instalments, a notice 
under Section 34 of the Bengal Act was served on the defendants for sale 
of the mortgage property. In spite of the notice, defendants failed to pay H 
1023 
1024 
SUPREME COURT REPORTS 
[2000] l S.C.R. 
A up the instalment and plaintiff filed an application for final decree. Single 
Judge dismissed the said application as time barred and the appeal before 
the Division Bench was also dismissed. Hence this appeal. 
It was contended by the appellant that default committed in each 
subsequent year in payment of instalment gave rise to a fresh cause of 
B action to apply for passing of final decree and an application filed on 
31.3.1973 would not be time barred at least in respect of the instalments 
which were payable under the decree on 31st March 1970, 1971 and 1972; 
and that the application may be time barred, at best, in relation to default 
committed by defendants for payment of the first instalment payment on 
C or before 31st March 1969. 
Dismissing the appeal, this Court 
HELD : 1.1. Order 34 Rule 2 CPC inter alia stipulates grant of six 
months' time to the defendant to pay the mortgage amount stipulated 
D under the preliminary decree and on default of payment, the plaintiff is 
entitled to apply for final decree directing sale of the mortgaged property 
as stipulated by Rule 4 of Order 34. Section 34 of Bengal Money Lenders' 
Act, 1960, however empowtrs the court to direct payment by instalments 
notwithstanding the limit of six months fixed in Order 34 CPC. [1026-D] 
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1.2. It is evident from Section 34 of the Bengal Act that in default of 
payment of any instalment, the date of such default shall be deemed to be 
date fixed under sub-clause (i) of clause (c) of Sub-Rule (1) of Rule 2 for 
payment of the whole amount. The whole amount found Gr declared due 
under or by a preliminary decree becomes payable and the plaintiff be· 
F comes entitled to apply for ii final decree under Section 34(1)(a)(ii) of the 
Bengal Act. It is thus clear that notwithstanding the dates of the instal-
ments having been fixed under the preliminary decree which was subject 
to the provision of the Bengal Act, a right accrued to the appellant to apply 
for final decree on default having been committed by the defendants In 
G payment of the amount of the first instalment. It is not 11 case of a simple 
money decree. It is a case of a mortgage where unde

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