NAGENDRA PRATAP SINGH DEO Vs. JOHARMAL PADIA

JUDGEMENT

(1.) This appeal arises out of an execution proceeding. The judgment debtor is the appellant, and his contention is that the execution is time barred. The facts are these : A preliminary mortgage decree had been passed against this appellant and others, and this decree was made absolute on 18th June 1932. The decree was for a sum of Rs. 16,000 and odd and in execution of this decree the mortgaged property was put up to sale and sold for Rs. 12,000. After the sale of the mortgaged property a balance of RS. 4571-5.3 was left, and for this amount the decree holder obtained a personal decree against the judgment-debtors on 19th December 1934. according to the provisions of Order 34, Rule 6, Civil P. C. This personal decree was also executed, and in three execution cases which were filed before this present execution case some amounts were realised. For the balance that was left the application for execution giving rise to this appeal was filed. This application for execution was filed on 18th December 1946, and it wag within three years from the date on which the last execution case had been dismissed but beyond 12 years from the date of the final decree that is, 18th June 1932, The judgment-debtors objected to this execution on the ground that it was barred under Section 48, Civil P. C. But their objection was overruled by the learned Subordinate Judge, and hence they have come up in appeal to this Court.

(2.) The execution case giving rise to this appeal having been filed more than 12 years after the date of the final decree which was passed in the mortgage suit cannot be deemed to be in time if the period of 12 years has to be reckoned from the date on which the decree was made absolute. But this execution case would be deemed to be in time if 12 years have to be reckoned from the time when the personaldecree under the provisions of Order 34, Rule 6, was passed for the recovery of that portion of the decree money which could not be realised by the sale of the mortgaged property. The sole question for determination in this appeal, therefore, is whether 12 years should be reckoned from the date of the personal decree, that is from 19th December 1934, or from the date of the final decree of the mortgage suit, that is, 18th June 1932. Mr. Sanyal, appearing for the appellant, had submitted that a composite decree had been passed in this suit, and that, therefore, this appeal should not be decided without calling for preliminary and the fical mortgage decrees of the mortgage suit. As this prayer had been made at a very late stage we directed that the appeal should be put up for further hearing after ten days if a sum of three gold mohurs was paid as costs to the learned Advocate for the respondents who bad pressed for costs in case we passed an order calling for the decrees of the mortgage suit. The costs, however, were not paid by Mr. Sanyal and we were asked to dispose of the appeal on the materials which have been placed before us. We cannot, therefore, proceed on the assumption that in this case there was a combined decree against the property and the person of the mortgagor. And if there was no composite decree, then it must be taken that the final decree that was passed on 18th June 1932, was only for the sale of the mortgaged property. And if the decree that had been passed on 18th Juno 1932, was a decree only for the sale of the mortgaged property, then under Rule 6 of Order 34, Civil P. C., the decree-holders could apply to the Court for passing a personal decree for the unrealised balance of the decree money, that is, for the amount of Rs. 4571-5-3 which was the balance left after the sale of the mortgaged property. Section 90 of Act IV [4] of 1882 has now been substituted by Rule 6 of Order 34, Civil P. C., and this rule runs as follows :

(3.) The rule thus lays down that when there is a balance left after the sale of the mortgaged property and that balance is legally recoverable by the mortgagee from the mortgagor the mortgagee may apply for and obtain a decree against the mortgagor personally, Such a decree can undoubtedly be executed by the mortgagee against the person of the mortgagor or by attachment or sale of his other properties. The object of such a rule is undoubtedly to obviate the necessity of a fresh suit to recover the balance. And because the language is "pass a decree for such balance," there is no reason why the decree-holder should not be allowed a period of 12 years from the date of the decree for the purpose of execution. A Full Bench of the Madras High Court held in Aiyasamisr v. Venkatackela Mudali, 40 Mad. 989 : (A. I. R. (5) 1918 Mad. 1187 (F. B.)) that where a mortgage decree provides foe recovery of any balance from the other properties of the mortgagor in case the sale proceeds of the mortgaged proporties are found insufficient to satisfy the entire decree amount, the decree-holder has under Section 48, Civil P. C., 12 years for the recovery of such balance reckoned from the time when it is ascertained to be due. The decree in that case was a composite decree in as much as besides directing the sale of the mortgaged property it further directed that if there was any balance left after the sale of the mortgaged property, it could be realised from some of the defendants personally and from the attachment and sale of the family properties other than the mortgaged properties. This decree was interpreted as a personal decree contingent on the mortgaged properties not fetching the whole of the decretal amount and their Lordships of the Madras High Court held that the decree-holders would have 12 years from the date of the personal decree on the footing that the decree could not be interpreted to be a decree executable at once against the person or the other properties of the defendants. The authority of this case is, however, now shaken because of the decision by the Judicial Committee in Khulna Loan Co. Ltd. v. Jnanendra Nath, 22 C. W. N. 145 : (A. I. R. (4) 1917 P. C. 85) in which case their Lordships held that where a mortgage decree provides that if the proceeds of the sale of the mortgaged properties were insufficient to satisfy the entire decretal debt, the balance would be realised from other properties and the persons of the defendants, limitation for execution of the latter part of the decree would run not from the date of the sale of the mortgaged property but from the date of the decree as fixed by Order 20, Rule 6, Civil P. C. If, therefore, the decree with which we are concerned in this appeal would have been a composite decree or a combined decree, we would not have been able to follow the Full Bench decision of the Madras High Court, but there is no reason why the principle laid down in that case should nob be followed by us when it has not been shown that the decree under execution is a composite or a combined decree. In a later Madras case Swaminath Odayar v. Thiagarajaswarm Odayar, 50 Mad. 6 : (A. I. R. (13) 1926 Mad. 954) the decision of the Judicial Committee in Khulna Loan Co. Ltd. v. Jnanendra Nath Bose, 22 C. W. N. 145 : (A. I. R. (4) 1917 P. C. 85) was followed, and the following observation was made : "If an order was passed after the property had been sold that, for the balance, other proparties of the mortgagors should be proceeded against, the present application would be in time, but no such order was passed and therefore the application is barrai by Section 48, Civil P. C." In other words, if after the mortgaged property has been sold, there is a decree passed according to the terms of Order 34, Rule 6, directing that for the realisation of the balance the decree-holder can proceed against the person and other proparties of the dafendants, there is no reason why the decree-holder should not have 12 years, from the date on which the personal decree under Order 34, Rule 6 was passed. In Bunyad Hussam v. Ballabh Das, 15 Luck. 95 : (A. I. R. (27) 1940 Oudh 90) in which case also the Privy Council decision referred to above was considered, the learned Judges of the Lucknow Chief Court hold that time for execution of the personal decree under Section 48, Civil P. C., would run from the date of the personal decree.