SURYA NARAYAN SAHU Vs. BANAMALI SAHU

JUDGEMENT

(1.) DEFENDANT 1 executed a simple mortgage bond for sell and on behalf of her minor son (defendant 2) on 20-9-47 in favour of the plaintiff for Rupees 4500 with interest at the rate of nine per cent per annum. In T M. S. No. 41 of 1953 plaintiff obtained a preliminary decree for RP 6846/10/- on 31-7-54. Final decree was passed on 18-7-56 for Rs. 11. 857-30 p. The mortgage security was sold on 23-161 for Rs. ft 825-00 in E P. No. 265 of 1956 The sale was confirmed on 28-4-62. For the balance dues, plaintiff filed an application on 5-8-64 under Order 34, Rule 6, C. P C. for a personal decree. It was allowed by an order passed on 27-9-65. Against this order the appeal has been filed.

(2.) THE only contention urged by Mr. Ramdas is that the application under Order 34. Rule 6, C P. C is barred by limitation as it was filed beyond three years from the date of sale it is conceded that if the starting point of limitation would be the date of confirmation of sale the application is within time The question is whether limitation would run from the date of the sale or from the date of confirmation of sale,

(3.) ORDER 34, Rule 6, C. P. C. runs thus-"where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. " there is no dispute that Article 181 of the Indian Limitation Act (Act IX of 1908) is applicable to such a case Article 181 may be quoted-Applications for Three When the which no Three years right to period of limitation is apply pro. years, vided accrues. " elsewhere in thie schedule or by S. 48 of the Civil P. C. , 1908.