SAHU BISHESHAR NATH Vs. CHANDU LAL

JUDGEMENT

(1.) This is a decree-holder's application purporting to be under Order 34, Rule 6, and asking for a decree, not for a balance due after a sale but for the total amount of the decree, on the ground that any sale now applied for and carried out would be inevitably infructuous owing to no fault of the mortgagee decree-holder. The facts are that the judgment-debtor executed a simple mortgage in favour of the present decree-holder on the 16 January 1908. On this mortgage a suit was instituted on the 20 November 1913, and a preliminary decree was obtained on the 22 December, 1913, ex parte. A third party, with whom we are not now concerned, brought a suit against the mortgagor, to which he also made the mortgagee a party, for a declaration that the mortgagor had no title in the property mortgaged, and obtained a decree on 15 December 1915. On 23rd September 1916, the mortgagee obtained a final decree.

(2.) The question that now arose for the mortgagee was whether he was to apply for sale under that decree, or what was his remedy, in view of the fact that it had already been declared in a suit to which he was a party that his mortgagor had no title. We have no information what steps, if any, he took, though presumably he took some, between the 23 September 1916 and 8 September 1922. As we have no information of what occurred in this interval it must be presumed that he did something to keep his decree alive, for no question has been raised as to that decree having become barred by limitation. The only matter which we find is a note by the Munsarim at the foot of the present application which says: The application is beyond time from the date of the decree passed in the original suit.

(3.) No issue appears to have been framed on this, and we must, therefore, take it that the application was made within three years of the last proceeding in execution and that the decree must be taken to have been alive at the date of the application so that an ordinary application for sale would, at the date of the present application, not have been barred by limitation. Again, if the present application can be properly regarded as one under Order 34, Rule 6, it might further be arguable at least that an application under Order 34, Rule 6 is in the nature of an application for execution and that, as such an application, the application in its present form also is not barred by limitation. It becomes necessary, then, to determine whether an application for a personal decree, where there has been no sale at all but the mortgagor has been found subsequently to the decree to have no rights, and where the mortgagee has not been to blame, is an application within Order 34, Rule 6.