BEHARI LAL Vs. BASHESHAR DAYAL

JUDGEMENT

(1.) These appeals arise out of an application made by the appellant under Order XXXIV, Rule 6 of the Code of Civil Procedure, for a money, decree. The first Court passed a decree as prayed. Three appeals were filed in the Court of the District Judge, who held that the application was barred by limitation and for other reasons also was not maintainable. The decree-holder has appealed to this Court. The same questions arise in all three appeals and can be disposed of by one order. The facts are as follows: On the 13th of September, 1904 the appellant obtained a decree nisi for the sale of mortgaged property. On the 18th of April 1905, an order absolute was made for the sale of the property, but before the sale could take place other persons brought a suit and obtained a decree for possession of the property. That case was disposed of by the Court on the 30th of March 1908. Three days later, i.e., on the 2nd of April 1908, the appellant applied for an order for the sale of the mortgaged property. Notice was issued on the 8th of May 1908. Objections were put in and the Court held that the mortgagor had no rights left in the property, which could be sold. On the 1st of April 1911, the appellant applied for a money-decree under Order XXXIV, Rule 6, with the result already stated.

(2.) There have been several cases in this Court in which it has been held that a mortgagee, decree-holder, may obtain a money-decree under Section 90 of the Transfer of Property Act or under Order XXXIV, Rule 6, where for one reason or another he has been unable to bring to sale the whole of the mortgaged property. See for example, Firbhu Narain Singh v. Amir Singh 29 A. 369 : A.W.N. (1907) 83. Bat, so far as I know, it has never been held by this Court that a mortgagee may obtain a decree for money under either Section 90 or Order XXXIV, Rule 6, where no portion of the mortgaged property has been sold either by the Court or by private treaty. On the contrary, in Parbhu harain Singh v. Baldeo Narain A.W.N. (1907) 69 : 4 A.L.J. 157 : 29 A. 260 Knox, J., held that a mortgagee was not entitled to a decree under Section 90 of the Act where he had been unable to bring the mortgaged property to sale by reason of the fact that it was an occupancy- holding, of which the mortgagor was not the tenant either at the date of the mortgage or at the date of the application under Section 90. It was said of Section 90 of the Transfer of Property Act that it proceeded upon the assumption that a decree for sale had been executed and that the proceeds of the sale held thereunder had proved to be insufficient to pay the amount due to the mortgagee. Order XXXIV, Rule 6, is not word for word the same as Section 90 of the Transfer of Property Act. The opening words of Section 90 were: "When the net proceeds of any such sale are insufficient". The opening words of Order XXXIV, Rule 6 are "When the net proceeds of any such sale are found to be insufficient". The difference in the language, if anything, supports the view that a sale must take place before a money-decree can be passed. I am not prepared to differ from the decision of Knox, J., in the case above mentioned.

(3.) In this view, it is unnecessary to consider the question of limitation, but I may observe that it has been held in several cases in this Court that an application for a money-decree of the kind now in question is governed in the matter of limitation by Article 181 of the first Schedule to the Limitation Act, 1908, which corresponds with Article 178 of the second Schedule to the Limitation Act of 1877. Time begins to run against the applicant as soon as his right to apply for a money-decree accrues. As I read Order XXXIV, Rule 6, the right to apply acccrues when the proceeds of the sale are found to be insufficient. As no sale has yet taken place, I cannot hold that the application is barred by limitation.