1. The plaintiff filed a suit in the Court of the Subordinate Judge of Mysore on 1-6-1933 for recovery of Rs. 8,000 due for principal and interest on a registered mortgage bond dated 23-2-1921. The last date of payment made towards the debt is said to be 22-2-1929. After obtaining the usual preliminary and final degrees for sale he got the mortgaged properties sold, and the sale was confirmed on 17-1-44. The decree was thereby only partially satisfied and so, for the balance he applied on 16-1-1917 under Order 34, Rule 6 of the Code of Civil Procedure for a personal decree against deft. 2 and the assets of deceased defendant 1 in the hands of defendants 2 to 7.
2. It appears that the plaintiff bad made a similar application for the same relief on 2-6-1944 and that application which was posted to 23-5-1915 for defendants' objections was dismissed for default on the ground of plaintiff's absence.
3. The application was resisted by the defendants on two among other grounds, v.z. that the application was barred by limitation and (2) that it was barred by the principle of resjudicata by reason of the dismissal of the previous application.
4. The learned Subordinate Judge dismissed the application. He held that the dismissal of the prior application was not a bar to the present one, but that the application was nevertheless a barred by time as in his view the application for personal decree should have been made within 3 years from the date of sale under Article 181 of the Limitation Act. The plaintiff has come up in appeal against that order.
5. Mr. G. Nagaraja Rao, the learned counsel for the respondents, has strenuously sought to support the decision not only on the point regarding limitation but he has also endeavoured to make out that the learned Subordinate Judge is wrong in holding that the dismissal of the earlier application does not bar the present one. The learned Judge, beyond saying that Article 181 requires it, has rot referred to any decided oases or given any reasons for coming to the conclusion that the application should have been made within 3 years of the date of sale and not the date of its confirmation. Under Article 181 the period of limitation prescribed for any application otherwise not provided for is 3 years from the date when the right to apply accrues. There is no doubt the proper stage at which an application for a personal decree can be made is not immediately after the sale of the mortgaged properties takes place, but after the sale is finally confirmed by the Court and the amount of the balance still due under the decree is thereby ascertained. In fact it has been held in 45 My a. H. C. R. 26: 18 Mys. L. J. 113 that a personal decree should not be passed until after the mortgaged properties have been sold, the proceeds are found insufficient to pay the mortgage money and the deficiency is ascertained, and that a Court should not while passing a decree for sale of the mortgaged properties make a personal decree also for the balance. In support of their decision their Lordships have referred to Raja Ramranjan v. Indra Narayan Das, 33 Cal. 890: (10 C. W. N. 352), Damodar v. Vyanku, 31 Bom. 244: (9 Bom. L. R. 199); Badri Das v. Inayat-Khan, 22 ALL. 404: (1900 A. W. N. 132); Aiyasamier v. Venkatechala, 40 Mad. 989: (A. I. R. (5) 1918 Mad. 1187 FB) and Janardhan Shkankar v. Krishnaji, 22 Bom. L. R. 953: 58 I. C. 377: (A. I. R. (T) 1920 Bom. 95). It has been held in Palaniappachettiar v. Naryanan, 59 Mad. 183: (A. I. R. (23) 1936 Mad. 34 FB), that the Court can take up for its consideration the question of passing a personal decree only after the deficiency, arising on the sale of the mortgaged property, is ascertained. That can only occur after the sale of the mortgaged properties is actually confirmed because if the sale is for any reason set aside that stage is not reached at all. The decree-holder can, therefore, in our opinion, apply under Article 181 for a personal decree within 3 years from the date when the sale is confirmed, (See Maliomadlltifat Husain v. Alimwnnisa, 40 ALL. 551: (A. I. R. (5) 1918 ALL. 105) and Francis Higgins Pall v. Minnie Gregory, 62 Cal. 828: (A. I. R. (12) 1925 Cal. 634 FB).
6. The defendants contended that the application was barred by time by reason of another circumstance also. They represent that the plaintiff has filed his suit on the mortgage bond a little over 9 years of the last payment made towards the amount due on it and not within 5 years of such date which he should have done if he wished to have the benefit of Article 116 of the Limitation Act. But in this case the defendants have been held to be agriculturist within the meaning of the Mysore Agriculturists Relief Act and under Section 24 of that Act the period of limitation for bringing a suit for recovery of money lent to an agriculturists when such a suit is founded on a registered written instrument is 12 years instead of the usual period of 6 years available under Article 116. The defendants, however, contended that the plaintiff cannot seek the aid of Section 24 of the Act in support of an application for a personal decree. The learned Subordinate Judge agreed with the defendants' contention holding that Section 24 applies only to suit a and not to applications. We think that that is not the way to look at the question. A mortgagor is entitled to recover the mortgage money not only from the mortgaged properties but also from the mortgagor personally if there is a personal undertaking in the deed to pay the amount; he must sue to enforce such liability within six years of the accrual of the cause of action under Article 116 of the Limitation Act, subject to the other saving provisions of that Act. Section 24 of the Agriculturists' Relief Act, however, gives him 12 years within which he can file such a suit against an agriculturist. The way to apply that provision to the facts of this case, is to see if the plaintiff's suit was in time to enforce such personal liability of the defendants and not try to apply it directly to, the application for personal decree. The present suit filed by the plaintiff on 1-6-1933 was well within 12 years of the last date of payment under the registered mortgage deed and so, therefore, clearly within time to enable him to ask for a decree personally against the defendants, in addition to a decree for sale.
7. Mr. C, Nagaraja Rao contends that the order of the Subordinate Judge holding that the plaintiff's application is not barred on account of dismissal for default of his earlier application is not correct. He argues that to such a dismissal the provisions of Order 9, Rule 9 of the Code of Civil Procedure apply by the operation of Section 141, and that the plaintiff was bound to have applied in time to have the dismissal order set aside. Having failed to do so, he is barred from filing a fresh application for the same relief. In support of his argument ha relies on a decision by a Single Judge in A. K. R. P. L. A. Chettiyar Firm v. Meher Singh, A. I. R. (17) 1930 Bang. 257: (8 Rang, 316) which no doubt is clearly in his favour. In that case it was held that an application for a personal decree against a mortgagor is not an application in execution proceedings but one for a decree and that where such application is dismissed for default a fresh application is barred under Order 9, Rule 9, the proper remedy of the decree holder being to have the order dismissing the application for default set aside.
8. The matter is certainly not, however, free from difficulty. We may examine how Section 141 read with Order 9, Rule 9, C. P. C. has been applied to applications generally and to applications under Order 34, Rule 5. C. P. C. in particular. It has been observed by the Privy Council in Thakur Prasad v. Fakir-ullah, 17 ALL. 106 (22 I. A, 44 P. C. ) while refusing to apply Order. 9, Rule 9 to execution applications that in their opinion the proceedings spoken of in Section 647, C. P. C. corresponding to Order 9, Rule 9 of the present Code include original matters in the nature of suits, such as proceedings in probates, guardianships and so forth and do cot include executions. The expression 'and so forth' in the observations of the Privy Council have been held to mean applications judson generis or similar in kind to the instances previously mentioned by them; see Sarat Krishna v. Bisweswar Mitra : AIR1927Cal534 . Chettiar Firm v. Meher Singh, A. I. B. (17) 1930 Bang. 257: (8 nang. 316), Brown J. has referred to this decision of the Privy Council and treated an application under order 84, Rule 6 as one in the nature of an original application for decree. In Mysore under our Rules of Practice, applications for the passing of a final decree or personal decree are treated as serial applications made in the suit itself and not as original applications; and that in our view is one of the material circumstances which we in Mysore may properly take into account in deciding this matter. In a later decision of the Bangoon High Court in Ma Than Sein v. Mr. Hla Yi, A. I. R. (28) 1941 Bang. 201: (1941 Rang. L. R. 246) which was decided by a Bench of two Judges it has been observed that the proceedings spoken to in Section 141 include original matters in the nature of original suits as proceedings in probate, guardianship and 90 forth, that is, which originate in themselves and not those which spring up from a suit or from some other proceedings or arise in connection therewith. In that; case it was held by their Lordships that when an application to be brought on record as the legal representative of a deceased plaintiff and for passing a final mortgage decree is dismissed for default, Section 141 does not apply and the applicants need not apply under Order 9, Rule 9 and that a fresh application to have the same relief can be filed. They also refer to Thakur Prasad v. Fakir ullah, 17 ALL, 106: (22 I. A. 44 P. C.) and Sarat Krishna v. Bisweswar Mitra : AIR1927Cal534 in support of their decision. The case in A. K. R. P. L. A. Chettiar Firm v. Meher Singh, A. I. R. (17) 1930 Bang. 257: (8 Bang. 316) was apparently not brought to their notice and has not been considered by them. Similarly, is Mysore, in 40 Mys. H. C. R. 9, it has been held that where the plaintiff has filed an application under Order 84, Rule 5 nothing further is needed to be done by him and the Court is bound to pass a final decree so long as no payment in accordance with Order 34, Rule 5 Sub-rule (1) has been made and that, therefore, once an application is made under Order 34, Rule 5 it cannot be dismissed for default of prosecution, nor will such dismissal operate as resjudicata between the parties. In support of their view their Lordships refer with approval to a decision in Jodha Singh v. Gokaran Das : AIR1925All622 where it was held that where an application for a final decree for sale has been unnecessarily and improperly dismissed, the Court could revoke the order of dismissal and pass a final decree upon an application made by a decree holder even though such application, regarded as a fresh application in execution or as an application for review, was beyond time.
9. There is very close similarity between the words of Order 34, Rule 6 and Order 34, Rule 6, Both of them require applications to be filed and final and personal decrees passed it the amount declared due under the preliminary decree has not been realised by the plaintiff. Mr. C. Nagaraja Rao has urged that while in Order 34, Rule 5 the words used are 'the Court shall pass a final decree', in Order 34, Rule 6 the worth used are 'may. . .' and that too only where the balance to be ascertained after the sale of the mortgaged properties is legally recoverable from the defendants. The words 'may. . .' in the latter rule can have the effect only of 'shall' as there is no discretion left in the Court to dismiss such an application provided the other conditions referred to in that rule exist, viz. a balance legally recoverable from the defendants. It must be remembered that the Court has already declared the amount due to the plaintiff when passing the preliminary decree and that what the Court really does later on by passing final and personal decrees in the course of the proceedings in the same suit is to assist him to recover the same. The dismissal, not on merits, but for default of prosecution, of an application made in the suit requesting the Court to pass a final or personal decree should not have virtually the effect of dismissing the suit or wiping out the preliminary decree itself by any rule of constructive res judicata; nor can a subsequent application under Order 34, Rule 6 be held to be barred by provisions of Order 9, Rule 9 in the absence of a clearer rule in the Code. In the present case, the first application I. A. No. 7 under Order 34, Rule 6 has not been disposed of on its merits and the second application I. A. No. 8 also has been filed within 3 years of the confirmation of the sale.
10. For the reasons stated above we are unable to follow the decision in A. K. R. P. L. A. Chettiar Firm v. Meher Singh, A. I. R. (17) 1930 Bang. 257: (8 Hang. 316) and we accordingly hold that the later application is not barred either by Order 9, Rule 9, C. P. C, or the principle of res judicata. This appeal is, therefore, allowed. The Subordinate Judge will proceed to consider the application I. A. No. 8 on its merits and dispose of it in accordance with law. The parties will bear their own costs in this appeal and in the lower Court as it is some want of diligence on the part of the plaintiff that has given rise to these difficulties against himself.