1. [His Lordship, after stating facts as above, proceeded :] The questions arising in this appeal are, firstly, whether the present application is maintainable under Order XXXIV, Rule 6, of the Civil Procedure Code, and, secondly, whether the application is within time.
2. Assuming that the application is maintainable, the present application filed on February 10, 1920, would be governed by Article 181 of the Indian Limitation Act, which provides the period of limitation of three years from the time when the right to apply accrues. Section 90 of the Transfer of Property Act has been transferred to the Civil Procedure Code as Order XXXIV, Rule 6, There fore, the application under that rule would be an application under the Civil Procedure Code, and Article 181 would apply. See Pell v. Gregory I.L.R. (1925) Cal. 828, f.b. overruling Biswambhar Shaha v. Ram Sundar Kaibarta I.L.R. (1914) Cal. 294 and Muhammad Iltifat Husain v. Alim-un-nissa Bibi I.L.R.(1918) All. 551.
3. Both the lower Courts held that limitation began to run from April 1912 when the fire occurred, and that the present application was within time on account of the exclusion of the period from 1913 to 1920 occupied by the previous darkhast in computing limitation under Section 14 of the Indian Limitation Act.
4. Under Section 14, Clause (2), the time during which the previous darkhast was pending could be excluded if it was prosecuted with due diligence and in good faith in a Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. It is not suggested that there was any want of due diligence or good faith in the prosecution of the previous darkhast. The only question is whether the previous darkhast could not ha entertained by the Court from defect of jurisdiction or other clause of a like nature. The previous darkhast was for execution of the decree passed on August 23, 1910, on the ground that it gave personal relief against the mortgagors, and though it was stated in the application that the fire took place in 1912 and therefore the property would be insufficient for the realization of the mortgage security, the previous darkhast was for execution of the decree in the original suit passed on August 23, 1910, and not to obtain a supplemental decree for a personal remedy under Order XXXIV, Rule 6. It was finally held by the High Court in Janardan v. Krishnaji : (1920)22BOMLR953 that the darkhast could not be executed personally against the mortgagors because the decree had not given any personal relief against the mortgagors judgment-debtors, but the remedy of the plaintiff was to obtain a v personal decree against the mortgagors under Order XXXIV, Rule 6. It cannot, therefore, be said that the previous darkhast was not entertained for was of jurisdiction or other cause of a like nature. The decree-holder misconceived his remedy. Instead of applying for the sale of the remaining property and applying under Order XXXIV, Rule 6, in ease the probable net proceeds of the Kale were considered insufficient, the decree-holder chose to execute the previous decree of 1910 on the ground that the decree itself was executable personally against the mortgagors. The contention of the decree-holder was accepted by the District Court and by Shah J. in appeal, but was negative in the Letters Patent appeal, It is clear, therefore, that the previous darkhast was dismissed, because the decree sought to be executed was not executable personally against the mortgagors, and that the decree-holder had misconceived his remedy in executing the decree and not applying for a supple-mental decree under Order XXXIV, Rule 6.
5. In Commercial Bank of India v. Allavoodeen Saheb I.L.R. (1900) Mad. 583 it was held that Section 14 did not apply because the previous suit was dismissed not on a technical ground of misjoinder of parties or causes of action but on the ground that having regard to the frame of the suit, no cause of action had been established against any of the defendants, and that it could not bo said that an abortive suit was one which the Court, from defect of jurisdiction or other cause of a like nature, was unable to entertain. In Murugesa Mudaliar v. Jattaram Davy I.L.R. (1900) Mad. 621 it was held that the previous suit was dismissed not because the Court, through defect of jurisdiction or other cause of a like nature, was unable to entertain it, but because it was misconceived, To the same effect is the decision in 'Tnkaram Apaji v. Naro Vithal Ghate (1888) P.J. 285. The case of Ganpatrao Sultanrao v. Anandrao Jagadeorao, s.I.L.R. (1919) Bom. 97: Bom. L.R. 238 relied on behalf of the respondent, does not apply to the facts of the present case, for in the previous suit the Court had no jurisdiction as the question was one which ought to have been entertained by the Court executing the decree under Section 47 of the Civil Procedure Code. The previous darkhast in this case was decided on the construction of the decree and not on the ground of want of jurisdiction or other cause of a like nature. The decree-holder's proper remedy, if any, was to apply under Order XXXIV. Rule 6, for a supplemental decree and not to execute the previous decree which had not given any personal relief. I think, therefore, that the time occupied by the prosecution of the previous darkbast cannot be deducted in computing the period of limitation under Section 14 of the Indian Limitation Act.
6. It is urged on behalf of the appellants that as a matter of fact, the plaintiff received compensation of Us. 1,504 on December 12, 1915, and though the amount was not received in execution of the sale as required by Order XXXIV, Rule 6, still it was ascertained on December 12, 1915, that the proceeds of the remaining property were found insufficient for the liquidation of the mortgage debt, and the cause of action to apply for a supplemental decree arose on that day. If the cause of action for an application under Order XXXIV, Rule 6, arose on the day when the fire occurred, i. e., April 1912, the present application is beyond time under Article 181 as stated above. If, on the other hand, the cause of action be said to have arisen on December 12, 1915, when the proceeds of the mortgaged property were proved to be in sufficient, the previous darkhast filed in 1913 cannot be said to be based on the same cause of action as the present application, and Section 14 of the Indian Limitation Act would not apply. The present application under Order XXXIV, Rule 6, is, therefore, beyond time.
7. It is urged on behalf of the appellants that the application is '' not maintainable as the condition precedent to the maintain-ability of the application has not been fulfilled, namely, that the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff. It is urged that it is only when the net proceeds of any sale which has been ordered under the previous rules of Order XXXIV are found to be insufficient to pay the amount duo to the plaintiff, that an application under Order XXXIV, Rule 6, would lie, and reliance is placed on Badri Das v. Inayat Khan I.L.R. (1900) All 404, Pirbhu Narain Singh v. Baldeo Misra I.L.R. (1906) All. 260 Kamta Prasad v. Saiyed Ahmad I.L.R. (1909) All 373 and Darbari Mai v. Mula Singh I.L.R. (1920) All 519
8. If the words of the rule are strictly construed, it would follow that any such sale under Rule 6 would refer to a sale under a decree absolute passed under Rule 5 of Order XXXIV. But, 5 under Order XXXIV, Rule 8, a sale can be ordered and it cannot be said that any such sale in Rule 6 could not refer to a sale under Order XXXIV, Rule 8, In Jeuna Bahu v. Parmeshwar Narayan Mahtha I.L.R. (1918) Cal. 370it was held that the opening words of Order XXXIV, Rule 6, did not establish as a condition precedent to the power of decreeing payment of the balance, that the mortgaged it property must first be sold and found insufficient to satisfy the debt. The question in that case was merely whether the Court at the time of passing a decree on a mortgage could not also pass a decree that on the happening of the event when the net pro- needs of the sale were found to be insufficient, the balance should be paid. The present point under consideration did not arise in that case, but it was held, that the construction suggested on behalf of the appellant was a strict and technical Construction and was note acceptable.
9. In Satish Ranjan Das v. Mercantile Bank of India, Ld I.L.R. (1917) Cal. 702 it was held that the object of the rule obviously was that the remedy of the mortgage should, in the first instance, be against the property mortgaged, and that such property should be exhausted before a personal liability is imposed upon the mortgagor, but the rule could not mean that if a portion of the property, however small, which was included in the mortgage and therefore included in the mortgage decree as a portion of that which was to be sold, destroyed or has ceased to be available for sale after the date of the decree and through no fault of the mortgage, then there can be no decree for personal liability against the mortgagor. In that case, the decrials amount in favour of the Mercantile Bank amounted to about Rs. 2,55,000 and most of the available property belonging to the judgment-debtors had been sold in execution of a decree in favour of the Allahabad Bank, There was a sale held in execution of the decree in favour of the Mercantile Bank in respect of three properties which fetched in all Rs. 20. The available property of the mortgagors could not be sold in execution of the decree of the Mercantile Bank, because, it had already been sold in execution of the decree in favour of the prior mortgage, the Allahabad Bank, Therefore, in that case, though there was a sale in form, it cannot be said that there was in substance a real sale in execution of the mortgage decree sought to be executed, Though the bulk of the property was sold in execution of the prior decree, the pulse mortgage was held entitled to make an application under Order XXXIV, Rule 6.
10. The decision in the case of Satish Ranjan Das v. Mercantile Bank of India, Ltd.m was followed in Ghand Mall Babu v. Ban Behari Bose I.L.R. (1923) Cal. 718 where certain properties were sold under Regulation VIII of 1819 otherwise than in execution of the mortgage decree and in execution of a decree on an earlier mortgage, and the mortgage under the later mortgage made an application under Order XXXIV, Rule 6, for a personal decree against the mortgagor. It was held that the remedy of the mortgage in the first instance was against the property mortgaged, and such property should, in the first instance, be exhausted before a personal liability could be imposed upon a mortgagor, but this did not mean that if a portion of the property, however small, which was included in the mortgage, and therefore included in the mortgage-decree, was destroyed or ceased to be available for sale through no fault of the mortgage, there could be no decree for personal liability against the mortgagor.
11. In the cases relied on behalf of the appellants it appears that there was either default on the part of the mortgage in ' not bringing the property to sale in execution of his mortgage decree, or negligence in accepting as security properties which were non-existent. Where, however, an unencumbered property is given as security for the mortgage debt and a decree is passed against the mortgaged property, and subsequently it is wholly or partially destroyed or ceased to be available for realization of the mortgage amount through no fault or negligence of the mortgage decree-holder, I think that there is considerable force in the contention on behalf of the plaintiff respondent that it would be open to the mortgage to make an application under Order XXXIV, Rule 6, unless the words 'where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff' and the words 'otherwise than out of the property sold' are strictly construed. Such a strict construction of this rule has not been accepted by the Privy Council and the Calcutta High Court.
12. In Ram Sewak Rai v. Sheo Naih Rai I.L.R. (1923) All 388 the mortgaged property, having been destroyed by division, the mortgage under a compromise decree was held entitled to bring a suit under Section 68 of the Transfer of Property Act to recover the mortgage money personally from the mortgagor. The decision does not bear on the question of the construction of Order XXXIV, Rule 6.
13. In the present case, the decree passed was a compromise decree and not a decree passed under Order XXXIV, Rule 5. The decree ordered the amount of Rs. 2,400 to be paid by instalments, and the compromise decree further provided that until payment of the whole mortgage amount, the whole of the sum should be a charge on the mortgaged property. The decree is of an unusual character and imposed a charge on the mortgaged property for the whole decrials amount. Some portion cjf the building was destroyed by fire and the open site and rest of the building was acquired by the Municipality after the mortgage decree-holder applied for sale of the mortgaged property. In this case, the property was partly destroyed by fire and partly ceased to be available for sale through no fault or negligence of the mortgage decree-holder. I am inclined to hold that, under the circum stances of this case, an application under Order XXXIV, Rule 6, would be maintainable.
14. The next question would be whether the balance would be legally recoverable from the defendants under Order XXXIV, Rule 6. Under Section 68, last clause, of the Transfer of Property Act, the mortgage is entitled to sue the mortgagor for the mortgage money and the balance would be legally recoverable from the defendants unless the remedy of the mortgage decree-holder is barred by limitation. It is not, however, necessary to discuss the question further, as I have already held that the present application, even if maintainable, is beyond time.
15. I would, 'therefore, reverse the decrees of both the lower Courts, and dismiss the application with costs throughout on the plaintiff-respondent No. 1.
16. I agree. This case raises rather a difficult point, as the fire by which the mortgaged property was partly destroyed and its value substantially decreased occurred after the decree in the mortgage suit, and before any sale had taken place under the decree, thus giving rise to the contention that neither Order XXXIV, Rule 6, Civil Procedure Code, nor Section 68 of Transfer of Property Act apply to the facts of the present case. It is, however, not necessary to go into the point, as the appeal must be decided on the point of limitation.
17. There can be no doubt that the present application is covered by Article's of the Indian Limitation Act and would be barred if limitation runs from the date of the fire, April 1912, unless the time occupied in the former application can be deducted under Section 14 of the Indian Limitation Act. That cannot be deducted unless the previous application is regarded as being dismissed because the Court had no jurisdiction. The reason for which that application was dismissed will be found set out in the report in Janardan v. Kriahnaji : (1920)22BOMLR953 , and it is clear that it was dismissed on the merits on the ground that there must be a decree personally made against the mortgagor before it can be executed against property other than the mortgaged property. Section 14 of the Indian Limitation Act would, therefore, have no application. The present application, made on February 10, 1920, is, therefore, barred.