M A NARASIMHACHAR Vs. MALLIAH

JUDGEMENT

(1.) The Petitioner was the plaintiff who filed an application on 25-11-47 under Order. 47, Rule 1 read with Sections 114 and 151, Civil P. C., praying for review of the order dated 25-8-47 dismissing the application No. V, for a personal decree in O. S. No. 307/34-35 on the file of the First Munsif of Mysore. The suit was filed on the foot of a hypothecation deed dated 5 4.1917 (with three years' time for payment). The suit wag filed on 26-11-34, alleging amongst other things that the cause of action arose on several dates including 26-11-1928. being the last date of an alleged payment of some amount towards the suit claim which had not been duly endorsed on the bond or signed by the parties making the payment. The preliminary decree was passed on 30-11-1935 and the final decree on 11-8-1938; in execution of the aaid decree, the mortgaged prosperty was sold and purchased for Rs. 40/-and the sale was confirmed on 12-1S-1941. The plaintiff-decree-holder tiled an application for setting aside the sale which was dismissed and the High Court in C. R. P. No. 233 of 42-43 upheld the Order of dismissal on 16-12-1942. Thereupon the plaintiff-decreeholder filed an application, I. A. No. v. under Order 34, Rule 6, Civil P. C., on 10-2-45 praying that a personal decree may be passed. The Court dismissed the application on 25-8-47, whereupon the petitioner filed an application for review of the said order on 25-11-47. The defendants resisted the application on the ground that it waa barred by time. The trial Court held that the time from which limitation runs in respect of such applications was the date of confirmation of the sale, and did not take into account the period occupied by the appeal and refused to allow the period of time from the date of sale till the date of the High Court order which effected the finality regarding the sale. The trial Court also gave a finding that the suit was not filed within six years and hence the personal remedy became barred. The trial Court declined to take into account the last date of the alleged payment of some amount viz. 26-11-28 which had been averred specifically in the plaint.

(2.) Mr. Gopalaswamy lyengar contends be fore this Court that both the grounds taken by the trial Court for the dismissal of his application for a personal decree are incorrect and illegal and that the trial Court has failed to exercise a jurisdiction vested in it. In support of the proposition that time runs for a personal decree from the date of the High Court order, he relies upon the following decisions reported in Rajambal v. Thangam, A. I.R. (22) 1985 Mad. 640 : (157 I. C. 942) and Jagrup Singh v. Mt. Ram Gati. A. I. R. (24) 1937 ALL. 285: (I. L. R. (1937) ALL. 481). Beasley C. J. in Rajambal v. Than-gam, A. I. R. (22) 1935 Mad. 640 at p. 642 : (157 I. C. 942) has observed that the decree- holder's tight to apply for a personal decree under Oder 34, Rule 6, Civil P. C., does not accrue until the sale has become absolute and where there is an appeal from an order dismissing an application by the judgment debtor to set aside the sale, the period of three years under Article 181, Limitation Act, for an application for a personal decree against the mortgagor begins to run from the date of the appellate order and not from the date when the sale is confirmed by the lower Court. This view has been followed in Jagrup Singh v. Mt. Bam Gati, A. I. R. (24) 1937 ALL 235 ; (I. l. r. (1937) ALL. 481), in which it has been laid down that the application under 0. 34, R. 6 cannot be treated as an application for execution of a decree which is governed by Article 181, Limitation Act, and time begins to run when the sale is confirmed finally by the appellate Court. This Court has also laid down in 18 Mys. L. J. 113 that the proper stage at which the plaintiff can ask for a personal decree in respect of any balance not realised after selling the mortgaged property, which had been made liable for the decree amount is, after the sale. Regarding the right to apply for a personal decree, it is no doubt true that it must be within six years based on the registered deed. The cause of action for the suit was alleged to be 26-11-1923 on which date payment is said to have been made. The learned Munsif observes that that payment is neither endorsed on the bond nor is there any acknowledgment of liability made on that date as alleged. It may be observed here that the very fact of the payment alleged and not denied by the defendant has become conclusive by the decree and the fact of such payment on the date averred can admit of no further doubt, The main point for consideration is whether the alleged payment had to be endorsed on the bond and acknowledged by the debtor. The learned Munsiff hag obviously ignored the amendment of Section 20, Limitation Act, by Act v [5] of 192d : the proviso that is added to Section 20 by Section 2 of the amending Act runs as follows :

(3.) The learned counsel for the respondents raised a preliminary objection that the review application is not maintainable and in support of his contention he relied on a decision of this Court reported in Siddegowda alias Nagegowda v. Boregowda, 17 Mys. L. j 267. It does not appear to follow from that decision that the proposition advanced is in any way supported. Following 10 Mys L. B. 301, the Judge in the above case observed that in the view held therein, the revision petition is not maintainable unless the order was passed by a Judge exercising a jurisdiction not vested in him by law or failing to exercise a jurisdiction so vested or acting in the exercise of jurisdiction illegally or with material irregularity. The contention of Mr. Gopalaswamy lyengar is that the learned Munsiff has failed to exercise a jurisdiction vested in him under the Limitation Act and it cannot be doubted that that jurisdiction is exercised with material irregularity. It cannot, therefore, be said that there was no error patent on the face of the record as to admit of review under Order 47, Rule 1, Civil P. C.