KRISHNABANDHU GHATAK Vs. PANCHKARI SAHA

JUDGEMENT

(1.) The defendants who unsuccessfully resisted an application for a decree for the balance under Order 34, Rule 6, Civil P.C., have preferred this appeal. They took four objections, which were all over ruled, and two of them have been pressed before us as of any substance.

(2.) The final decree for sale was passed on 18 June 1921. The sale was held on 28th October 1922, and was confirmed on 26 June 1925. The application for a decree for the balance was made on 27 May 1926. It is conceded, and indeed, cannot be disputed, that the application is governed by Art. 181, Schedule 1, Lira. Act: Pell V/s. Gregory . This is the article which the Subordinate Judge has applied. He has however observed: I think that the time from which limitation would run is the date of confirmation of the-sale, inasmuch as, unless and until the sale was confirmed by the Court after disposing of all objections against it, the deficiency in the amount could not be ascertained for the purpose ? of Order 34, Rule 6, and, until this could be ascertained, the plaintiff's right to apply could not accrue.

(3.) It is said on behalf of the appellants: that the right to accrue arose on the sale having taken place, that with some foresight deficiency could be ascertained, and that if the decree- holders are permitted to wait till the objections are decided they might as well urge with propriety that they are entitled to wait until an appeal or even a second appeal is disposed of, which would prevent their right to apply from accruing for an indefinite time. Such a view, it is said, would militate against the view of Art. 181, taken in the case of Hari Mohan Dalal v. Parmeswar Saha . The question that arises upon a plain reading of the article is, when did the right to apply accrue for an application for the balance; or, in other words, what was. the earliest point of time at which it could be said that it had arisen. That point of time can in no event be earlier than when, in the words of Order 31, Rule 6,: the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff.