RAMAVARMA RAJA Vs. CANARA BANK

JUDGEMENT

(1.) The main question that arises for decision in this appeal centres round the period of limitation applicable to the personal decree under O.34 R.6 of the Code of Civil Procedure, 1908. The Trial Court held that the application for personal decree filed by the decree holder in this case was barred since the period of limitation would run from the date of confirmation of sale. However, in appeal, the learned single Judge found that the application was not barred by time inasmuch as the period of limitation would depend upon the question as to what point of time the amount due was finally quantified. There is no dispute between the parties that the residuary Art.137 of the Limitation Act, 1963 would apply in this case. That means the application shall be filed within three months when the right to apply accrues. In substance the question is when did the right to file the application for personal decree accrue to the appellant in the facts of the present case.

(2.) The basic facts required for the adjudication of the above dispute are condensed thus: The plaintiff, Canara Bank, Mangalore, obtained a mortgage decree in O.S. No. 59 of 1977 from the Sub Court, Kasargode, for an amount of Rs. 17,613.96. Consequently a preliminary decree was passed on 21.12.1972 and thereafter a final decree was passed for sale of the mortgaged properties on 30.11.1973. Pursuant to the final decree the properties were sold in auction on 15.10.1979 and the sale was confirmedon7.12.1979. A sum of Rs. 15,010/- was realised out of the sale of two items of properties towards decree debt. On the date of confirmation of sale, a third party filed O.S. No. 134 of 1979 before the same court seeking to declare that the sale of item No. 2 of the decree schedule property to be void. The decree holder and the judgment debtors in O.S. No. 59 of 1972 were also made parties to the said suit. Ultimately the said suit was decreed declaring that the sale of item No. 2 was void on the ground that the judgment debtors had no saleable interest in the said property. Thus, the net result was that the decree holder could get only Rs. 10.000/- towards the decree debt. Under the above circumstances, the decree holder filed an application IA. No. 677 of 1983 for personal decree under O.34 R.6 of the CPC for realisation of the balance decree amount from the judgment debtors on 7.3.1983. However, the executing Court dismissed the said application on 17.12.1988 finding that the claim for the personal decree was barred by limitation. Being aggrieved by the said order the decree holder filed A.S. No. 393 of 1989 before this Court. The learned single Judge by judgment dated 11.6.1997 found that the application for personal decree was not time barred and thereby allowed the appeal reversing the finding of the Trial Court. As against the said judgment the present appeal has been filed.

(3.) The executing court relied on the decisions in Surya Narayan Sahu v. Banamati Sahu (AIR 1968 Orissa 202) and S.K. Ajaraddi v. S.M. Sonai Bibi (AIR 1946 Calcutta 65) for holding that the period of limitation starts from the confirmation of sale on 7.12.1979. In that view of the matter, the executing court further found that the application for personal decree filed on 7.8.1983 is barred by limitation. On the other hand, the learned single Judge observed that the suit O.S. No. 134 of 1979 was filed challenging the sale in O.S. No. 59 of 1972 by a third party impleading the decree holder as well as the judgment debtors in O.S. No. 59 of 1972. That suit was finally disposed of on 12.10.1982. Therefore, the learned Judge observed that the actual amount due to the decree holder could be ascertained only after final qualification. That being so, the right to apply for personal decree accrued in this case only on the date of disposal of O.S.No. 134 of 1979 on 12.10.1982. That means, the application for personal decree filed on 7.8.1983 is not barred by limitation prescribed under Art.137 of the Limitation ct. For arriving at this conclusion the learned single Judge relied on the Bench decision of the Madras High Court in Kamakshi Ammal v. Ananthanarayana Swami Pillai ( AIR 1948 Mad. 33 ).