BINDHIACHAL RAI Vs. SITA RAM MISIR

JUDGEMENT

(1.) We think that, having-regard to the fact that the final decree of November 1915 contained no provision for payment of the balance and for the recovery of such balance from the debtor, the mortgagee was driven to make an application under Order XXXIV, Rule 6. The position no doubt was a difficult one but we think that we ought to look at the substance, and an application under Order XXXIV, Rule 6, was in substance an application for a personal decree of the balance which had been ascertained as a result of the realisation by the sale. That amount could got be finally ascertained until the sale had been confirmed. The view that the Court by, law took on the matter of limitation, therefore, was right and the view that our Stamp Reporter took that this was a regular appeal was also right. The appeal is dismissed with costs including, in this Court fees on the higher scale.

(2.) We exempt the respondent from any liability under which he may otherwise be for payment of the deficiency in the Court below.

(3.) The Court below must do its best to recover the deficiency from the appellant.