B RAJAMBAL Vs. THANGAM

JUDGEMENT

(1.) This is an appeal from an order of the Additional Subordinate Judge of Madura, dismissing She appellant's application, dated 4 April 1932, under Order 34, Rule 6, Civil P.C., for a personal decree on the ground that the application was time barred. It was agreed in the lower Court that Aris 181, Lim. Act, applies to this case. That article gives a period of three years from the time when the right to apply accrues. The sale of the property in Court auction took place on 12 October 1925. There was an application to set aside the sale on the ground of fraud or irregularity, which was dismissed on 22 February, 1926 upon which date the sale ?was confirmed. The judgment, debtor ?filed an appeal against the order of dismissal and that appeal was dismissed toy the High Court on 10 November 1930. The dispute is as to when the right to apply under Order 34, Rule 6, Civil P. C, accrued. The respondents successfully contended in the lower Court that "the right accrued on the date of the confirmation of the sale, namely 22 February, 1926. If that contention is correct, then the application was clearly time-barred. The appellant contended an the lower Court and here that the right accrued only on the date of the dismissal of the appeal in which case the application was in time. In support of this appeal reference was made to Chandramani Shab V/s. Anarjan Bibi 1934 PC 134, a decision of the Privy Council.

(2.) In that case the Subordinate Judge ?disallowed the application under Order 21, Section. 90 to set aside a sale in execution and made ah order under Rule 92(1) confirming the sale and there was an appeal from that disallowance to the High Court which was dismissed; and it was held that the three years period provided by the Limitation Act, 1908, Schedule 1, Article 180, for an application under Order. 21, Rule 95 by the purchaser for delivery of possession runs from the date of the order on appeal, the High Court having under the Code of Civil Procedure, Section 107(2), the same powers as the Subordinate Judge and the "time when the sale becomes Absolute" for the purpose of Art. 180 is when the High Court disposes of the appeal. It is true that that case is a decision upon an application by the purchaser for delivery of possession and is a decision upon Art. 180 under which time does not begin to run until the sale has become absolute, whereas under Art. 181 time begins to run from the date when the right to apply accrues; but it seems to me that until the sale has become absolute, which according to their Lordships of the Privy Council, where there is an appeal, is not until the date of the appellate order, it has not been finally determined whether the sale proceeds ore or are not sufficient to satisfy the, decree-holder's decree and that until that has been ascertained, the decree-holder cannot apply for a personal decree. If the judgment-debtor's appeal against the order dismissing his application to set aside the sale had been successful in the High Court, the sale would have been set aside and a re-sale would have taken place which might have resulted in there being an even larger deficiency or no deficiency at all. Although the sale was confirmed upon the dismissal of the judgment-debtor's application, by reason of the appeal the question of whether there was or was not a deficiency was thus re- opened. On p. 952 their Lordships say: In considering the meaning of the words in Art. 180, Lim. Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the sale; in that case, of course, there could be no confirmation of the sale as far as. the Subordinate Judge was concerned as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal, and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and, on such an order of confirmation by the High Court, the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and, of course, no confirmation and no absolute sale; and again: The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Art. 180, Lim. Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the application.

(3.) I am clearly of the view that, where there is an appeal, the decree-holder's right to apply for the personal decree does not accrue until the sale has be- come absolute. In considering Art. 182(2) Lim. Act, their Lordships of the Privy Council stated in Negendrnath De v. Sureshchandra De 1932 PC 165: It is at least an intelligible rule that, so long as there is any question sub-judice between any of the parties, those affected shall not be compelled to pursue the so- often thorny path of execution, which, if the final result is against them, may lead to no advantage. Nor, in such a case as this, is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and, if he is virtually inclined, there is nothing to prevent his paying what he owes into Court.