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1952 Supreme(Pat) 101
PATNA HIGH COURT
Reuben and Sarjoo Prasad JJ.
Ajab Lal Mandar
Versus
Jai Prakash Lal Sahu
Appeal from Original Decree No. 150 of 1947 ;
Decided On : AUGUST 27, 1952
The right to apply for a personal decree under Order 34, Rule 6, which had accrued to the appellants on 7-7-1942, the date of confirmation of sale, remained in "a state of suspended animation" until the last of the objections filed against the validity of the sale had been decided in favour of the appellants in April 1945 thereby, as it were, giving a fresh start of limitation to the appellants.
Headnote:
LIMITATION ACT - ARTICLE 181 - APPLICATION FOR PERSONAL DECREE AGAINST JUDGMENT-DEBTORS - WHETHER BARRED - RIGHT TO APPLY ACCRUED ON CONFIRMATION OF SALE - SUBSEQUENT PROCEEDINGS CHALLENGING SALE - NO EFFECT ON LIMITATION - NO EQUITABLE CONSIDERATION CAN BE IMPORTED IN LIMITATION ACT.
Fact of the Case:
The appellants obtained a mortgage decree in December 1934 on the foot of a mortgage bond, dated 25-2-1926, the suit having been filed within six years from the due date mentioned in the bond. This preliminary decree was made final in December 1935, and in execution thereof the mortgaged properties were sold and purchased by the decree holders in satisfaction of the decretal dues. The sale was held on 31-1-1941, and it was confirmed on 7-7-1942. The case of the appellant is that a part of the decretal dues had remained unrealised by the sale of the mortgaged properties. He, therefore, filed the present application under Order 34, Rule 6 of the Code on 3-8-1945. The application is apparently beyond three years from the date of confirmation of sale and is, therefore, barred; but the appellants seek to avoid the bar of limitation on the ground that even after confirmation of the sale, the judgment-debtors continued to file various objections to the sale which were all decided ultimately in favour of the decree-holders, the last of them having been decided on 21-4-1945, upholding the sale. It is therefore, contended that the application is well within time from the date last mentioned on which the objections to the sale were finally decided.
Finding of the Court:
The right to apply for a personal decree under Order 34, Rule 6, which had accrued to the appellants on 7-7-1942, the date of confirmation of sale, remained in "a state of suspended animation" until the last of the objections filed against the validity of the sale had been decided in favour of the appellants in April 1945 thereby, as it were, giving a fresh start of limitation to the appellants.
Issues: Whether the application for a personal decree against the judgment-debtors is barred under Article 181, Limitation Act.
Ratio Decidendi: 1. The right to apply for a personal decree accrued to the appellant on the confirmation of the sale on 7-7-1942, the execution case having terminated with the confirmation. 2. Once a right to sue has accrued and time has started running, it could not stop unless there was some direct obstruction to the remedy itself, or unless the case fell within some of the exceptions provided in the Limitation Act. 3. The statute of limitation is a self-contained statute and no equitable consideration can be imported in it apart from the provisions made therein. 4. In the present case there is nothing to show that there was anything to prevent the appellants from seeking their remedy under Order 34, Rule 6, after the confirmation of the sale; and the records do not disclose that on account of the subsequent proceedings which followed at the instance of the judgment-debtors, the appellants were either effectively prevented from availing themselves of this remedy or deprived of it by any process of law. 5. The mere fact that some frivolous and ineffectual objections were taken by the judgment-debtors to the validity of the sale would not stop the running of limitation for the present application under Order 34, Rule 6 of the Code.
Final Decision: Appeal dismissed.
Sarjoo Prosad, J.
1. This appeal raises an interesting question of law for determination, viz. whether the application under Order 34, Rule 6, Civil P. C., filed by the appellants for a personal decree against the respondents is barred under Article 181, Limitation Act.
2. The relevant facts are that the appellants obtained a mortgage decree in December 1934 on the foot of a mortgage bond, dated 25-2-1926, the suit having been filed within six years from the due date mentioned in the bond. This preliminary decree was made final in December 1935, and in execution thereof the mortgaged properties were sold and purchased by the decree holders in satisfaction of the decretal dues. The sale was held on 31-1-1941, and it was confirmed on 7-7-1942. The case of the appellant is that a part of the decretal dues had remained unrealised by the sale of the mortgaged properties. He, therefore, filed the present application under Order 34, Rule 6 of the Code on 3-8-1945. The application is apparently beyond three years from the date of confirmation of sale and is, therefore, barred; but the appellants seek to avoid the bar of limitation on the ground that even after confirmation of the sale, the judgment-debtors continued to file various objections to the sale which were all decided ultimately in favour of the decree-holders, the last of them having been decided on 21-4-1945, upholding the sale. It is therefore, contended that the application is well within time from the date last mentioned on which the objections to the sale were finally decided.
3. The learned subordinate Judge dismissed the application as time barred, and the appeal is directed against that order of his, dated 16-1-1947.
4. Mr. U. N. Sinha on behalf of the appellants has presented the case with skill and ingenuity and has cited a large number of decisions in support of his contention. The ordersheet of the execution case shows that the sale was confirmed on 7-7-1942. On that very date an application under Sections 47 and 151, Civil P. C., appears to have been filed on behalf of the judgment-debtor, Mohan Lal Sahu. This application was eventually dismissed for default in May 1943. Another objection under Sec. 47 was filed on the same day on behalf of the same judgment-debtor on similar allegations which again met a similar fate. Thereafter, it appears an application for review was filed by the said judgment-debtor on 1-6-1943, which again was dismissed for default on the 5th of that month. Fresh objections appear to have been again presented in March 1944, this time purporting to be under Order 21, Rule 90, Civil P. C. This was numbered as Miscellaneous Case No. 21 of 1944 and was at the instance of the son of the judgment-debtor No. 1; and this application was again dismissed on 21-4-1945. It is thus obvious that after the confirmation of sale various frivolous applications were filed on behalf of the judgment-debtors challenging the sale but without any success whatsoever.
The contention of Mr. Sinha is that these applications had the effect of imperilling the sale in question, and, therefore, until the applications were finally decided, the appellant could not take any effective steps to obtain a personal decree against the judgment-debtors. In any case it is contended that so long as these objections remained pending, even if it be assumed that a right to apply had accrued to him, the right remained in a state of "suspended animation" until the decision of the objections in question impugning the validity of the sale in favour of the decree-holder. Mr. Sinha concedes that he cannot bring his case under any of the saving provisions of the statute of limitation itself, but he seeks to base his contention on certain equitable principles analogous to those underlying Sec.14, Limitation Act, and in support of this he relies upon various judicial pronouncements.
5. It cannot be disputed that an application under Order 34, Rule 6, Civil P. C. is for purposes of limit
