The right to apply for final decree accrues upon the first default being committed.

( 1 ) THE main question which arises for determination in this appeal is whether the Respondent's application for final decree for sale of certain mortgaged properties, in a mortgage suit, is barred by limitation. Bachawat J. who originally heard this application, has passed a final decree for sale overruling the contention of the mortgagor appellant that the application is barred by limitation.

( 2 ) BEFORE us, the learned Advocate for the appellant has raised the question of limitation and another point which was not raised before the trial Court, namely, whether the notice of the application for final decree purported to have been given by the respondent under Section 34 of the Bengal Money Lenders Act, 1940, is invalid, not being in the form prescribed by the Rules framed under the provisions of the Bengal Money Lenders Act.

( 3 ) ADVERTING to the question of limitation, it appears that the preliminary decree for sale was passed on the 10th July 1953 under Section 34 of the Bengal Money Lenders Act read with Order 34 of the Code of Civil Procedure, declaring a sum of Rs. 16354/5/8 pies as being due for principal and interest. The decree further provided inter alia as follows:--"and it is hereby further ordered and decreed that the defendant do by four equal instalments pay into court to the credit of this suit the sum of Rs. 16354/5/8 pies, the first of such instalments to be paid by the 1st day of December 1953 and the subsequent instalments by the first day of December in each year and the taxed costs of the suit awarded to the plaintiff. . . . . And it is hereby further ordered and decreed that in default of payment as aforesaid, the plaintiff may after giving notice to the defendant and subject to the provisions of the Bengal Money Lenders Act, 1940, apply to the Court for a final decree for the sale of the mortgaged properties. . . . . "

( 4 ) THE appellant defaulted in making payment of all the four instalments which were payable on the 1st December, 1953, 1st December 1954, 1st December 1955 and 1st December 1956. Thereupon, the respondent who is the assignee in respect of the preliminary mortgage decree, gave notice on the 8th March 1957 of his intention to apply for a final decree for sale in terms of the provisions if Section 34 of the Bengal Money Lenders Act. The notice of motion for this application for final decree was taken out on the 15th May 1957.

( 5 ) THE contention of the appellant is that upon the default being made in payment of the first instalment, the right to apply for final decree accrued on the date of the default and the period of limitation commenced to run from that date under Article 181 of the Limitation Act and as the application for final decree was not made within three years of that date, it is barred by limitation.

( 6 ) IN order to examine the force of this contention, it is necessary to construe the relevant provisions of Section 34 of the Bengal Money Lenders Act under which the preliminary decree in question was passed and it will, therefore, be convenient at this stage to set out the relevant provisions hereunder:--"34 (1) Notwithstanding anything contained in any law for the time being in force, or in any agreement, the Court shall (a) in suits in respect of loans to which the provisions of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908. apply, on the application of the defendant and after hearing the plaintiff, notwithstanding the limit of six months provided therein, direct at the time of the passing of the preliminary decree under rule 2 or rule 4 of the said Order to the effect mentioned in Sub-Clause (i) of Clause (c) of Sub-rule (1) of the sai3 rule 2,-- (i) that the payment of the amount found or declared due under Sub-rule (1) of Rule 2 or sub-rule (1) of Rule 4 of the said order, as the case may be, is to be made, subject to such conditions as the Court may impose in such number of annual instalments and on such dates as the Court th