SAHU RADHA KRISHNA Vs. TEJ SAROOP

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed, dated the 25 of February, 1921. The suit was instituted on the 12 of February, 1927, i. e., more than three years after the mortgage but within six years of it. In the plaint the plaintiff claimed a further relief that in case the mortgaged property be insufficient and any amount remains due to the plaintiff, the plaintiff may be authorised to apply for the preparation of a decree against the person and other properties of the principal defendants. The first Court held that the personal remedy was barred, as the suit had been brought more than three years after the bond and relied on certain remarks in Ganesh Lal Pandit v. Khetramohan Mohapatra 95 Ind. Cas. 839 : 53 I.A. 134 : 24 A.L.J. 615 : A.I.R. 1926 P.C. 56 : 43 C.L.J. 545 : 28 Bom. L.R. 931 : 24 L.W. 50 : 51 M.L.J. 82 : 7 P.L.T. 501 : (1926) M.W.N. 535 : 3 C.W.N. 591 : 5 Pat. 585 : 31 C.W.N. 25 (P.C.), The plaintiff preferred an appeal challenging the finding that a personal decree was barred. He also urged that the lower Appellate Court should not have decided that question at that stage. The learned District Judge has repelled both these contentions holding that the question was decided because the plaintiff himself had asked for a personal decree, and that such personal decree was barred by the three years rule.

(2.) It seems to me that the proper stage for deciding such a point is after the net proceeds of the sale have been found to be insufficient to pay the decretal amount, Order XXXIV, Rule 6 provides that where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, the Court may pass a decree for such amount if the balance is legally recoverable. The words "found to be" have been newly added in this rule and did not find a place in Section 90 of the Transfer of Property Act. Old rulings are to my mind not now applicable. So long as it has not been ascertained that the sale proceeds are insufficient, no question for the passing of a personal decree really arises. This matter is made clear still further by Appendix A No. 45 which suggests a form for the plaint in a suit for sale and allows the plaintiff to ask for further relief that in case the proceeds of the sale are found to be inefficient to pay the amount due to the plaintiff, then that liberty be reserved to the plaintiff to apply for a decree for the balance. Similarly Appendix D Form No. 4 relating to a preliminary decree for sale shows that a direction that the plaintiff shall be at liberty to apply for a personal decree for the amount of the balance is to be entered in it. The occasion for applying, of course, comes later on when the proceeds are found to be insufficient. It is then that a personal decree can be passed.

(3.) As, however, the question has been distinctly decided by the Courts below, it is convenient to dispose of the plea of limitation. It cannot be doubted that under the old Limitation Act the great preponderance of opinion in all the High Courts had been that Art. 116 of the Limitation Act applied to suits for recovery of money on a registered document. The earliest Fall Bench case of this Court was that of Husain Ali Khan V/s. Hafiz Ali Khan 3 A. 600 (F.B.). In the leading case of Ram Din V/s. Kalka Prasad 12 I.A. 12 : 7 A. 502 : 4 Sar.P.C.J. 619 (P.C.) their Lordships of the Privy Council laid down that the Art. 132 of the Limitation Act provides the period of limitation of twelve years as against the mortgaged property, but that period did not apply to the personal remedy which the instrument carried. The head-note appears to be slightly misleading as in the body of the judgment their Lordships did not lay down that the rule of three years applied to registered security also. They referred to three years rule for simple money demands and single bonds etc., and to six years rule as regards foreign judgments and compound registered securities. This case was followed by the Calcutta High Court in Miller V/s. Runja Nath Moulick 12 C. 389 : 10 Ind. Jur. 376 where it was remarked that a period of six years was applicable to the personal remedy on the basis of a registered mortgage-deed.