BISHWAMBHAR SAHA Vs. RAM SUNDAR KAIBARTA DAS

JUDGEMENT

(1.) This is a second appeal arising out of a decision given by the Sub ordinate Judge of Comilla on the 13th November 1911 holding that a certain application under Section 90 of the Transfer of Property Act was not barred by limitation and that the suit must be remanded to the Munsif for determination of what balance is legally recoverable from the defendant otherwise than from the property sold. An appeal was preferred to this Court on the 15th July 1912 and the first ground was with regard to the question of limitation; the second ground was with regard to the order of remand, the third was the general ground that the learned Subordinate Judge has misconstrued the law. That can only refer to the law of limitation which was the only question raised.

(2.) As regards the remand we find that the defendants-appellants have been guilty of the greatest laches. The appeal, which they filed on the 4th May 1912, was without the certified copy of the Mnnsif s judgment and could not be admitted till the 5th July. The talabana was not filed till the 10th January 1913, and meanwhile the learned Munsif had heard the remand and decided it in November 1912. We have seldom met with a case where the appellant deserved less consideration from this Court. But as regards the question of limitation it is, of course, quite open to him still to argue that.

(3.) This is the only point which we can consider. It raises a somewhat new point. The mortgage-decree was passed on the 1st April 1905, the mortgage was dated the 2nd March 1901 the due date was 12th February 1902, and the plaint in the mortgage suit was filed on the 11th February 1905. On the authority of the ruling in Rahmat Karim v. Abdul Karim 34 C. 672 : 11 C.W.N. 674 : 6 C.L.J. 119 the plaintiff had his personal remedy at the date of the institution of the suit. The question which has been raised in this case is whether he loses that personal right by reason of his not having made the application for personal decree under Order XXXIV, Rule 6, within three years of the date of the confirmation of the mortgage sale which took place on the 12th September 1907. The application which he did make was on the 31st January 1911. On that date the new Code of Civil Procedure was in force, and it is argued that Article 181 must necessarily apply to an application of this nature. It was held that the section which corresponded to Section 181 in the later Limitation Act, namely Article 178, did not apply to an application by a mortgagee for a supplemental decree under Section 90 of the Transfer of Property Act and since the new Civil Procedure Code has come into force, there has been the ruling in the case of Madhab Moni Dasi v. Pamela Lambert 6 Ind. Cas. 537 : 12 C.L.J. 328 : 37 C. 796 : 15 C.W.N. 337 where Mr. Justice Mookerjee, in delivering the judgment of the Court follow the decision to which one of us was a party in Rahmat Karim v. Abdul Karim 34 C. 672 : 11 C.W.N. 674 : 6 C.L.J. 119 and applies it to Order XXXIV, Rule 3, which is the case of order absolute in a mortgage suit.