CHIMANSINGH Vs. HANUMAN

JUDGEMENT

(1.) THIS second appeal by the decree holders raises an important question of law which arises under the following circumstances :-The appellants obtained a preliminary decree for recovery of Rs. 2500/-by sale of the mortgaged house under Order XXXIV, Rule 4. Civil P. C. on 30-7-1959 from the Court of Civil Judge. Jodhpur. Three months' time was granted to the defendant for making the payment of the decretal amount. It was further provided in the preliminary decree that in case the sale proceeds of the mortgaged property fell short of the decretal amount, the plaintiffs would be entitled to make an application for a personal decree which would be disposed according to law. The judgment debtor having not paid the decretal amount "within the period fixed in the preliminary decree, final decree was passed on 15-2-1960 in pursuance of "which the mortgaged house was put to auction and sold for Rs. 1208/ -. Consequently, the plaintiffs presented an application on 21-3-1961 under Order XXXIV, Rule 6 Civil P. C. for a personal decree for the balance of the decretal amount. This application was resisted by the defendant on the ground that the remedy for personal decree had become barred on the date the suit was instituted. It may be mentioned here that the mortgage dood was of 275-1949 and the suit was filed after more than 6 years on 29-4-1959 and was thus admittedly barred by limitation for a personal decree under article 116 of the Limitation Act of 1908, which was then in force. The learned Civil Judge, Jodhpur upheld the defendant's objection and dismissed the application. On appeal by the plaintiff the decision of the learned Civil Judge. Jodhpur was upheld by the District Judge, Jodhpur. Consequently, the plaintiffs (decree holders) have come in second appeal to this Court.

(2.) THE opposite party has not put in appearance in spite of service and consequently I have heard this appeal ex parte.

(3.) LEARNED counsel for the appellants has, however, placed the case very fairly and has brought to my notice the authorities on either side.