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Muhammad Iltifat HusaIn Vs. Alim-un-nissa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1918All105; (1918)ILR40All551
AppellantMuhammad Iltifat Husain
RespondentAlim-un-nissa Bibi and ors.
Excerpt:
civil procedure code (1908), order xxxiv, rule 6 - application for decree over against the mortgagor--limitation--act no. ix of 1908 (indian limitation act), schedule 1, article 181. - .....out of the property sold, the court may pass a decree for such amount. in the present case the original mortgage decree was obtained in february, 1906, the mortgage property consisted of two villages. in the events which happened the mortgagee became entitled to the equity of redemption of one of the villages, the result being that the two interests, that is, the interest of the mortgagee and the interest of the mortgagor, vested in one person. this operated to discharge the mortgage to the extent of the value of the property acquired by the mortgagee. in the year 1911 the other village was put up to sale and purchased by the decree-holder. accordingly, the mortgaged property and all rights in respect of it were exhausted in the year 1911, and it was on this basis that the.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. This appeal arises out of an application under Order XXXIV, Rule 6. This Rule applies to cases in which after the mortgaged property has been sold the mortgagee comes to court and asks for a personal decree for the balance left due. The Rule provides that 'where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the court may pass a decree for such amount. In the present case the original mortgage decree was obtained in February, 1906, the mortgage property consisted of two villages. In the events which happened the mortgagee became entitled to the equity of redemption of one of the villages, the result being that the two interests, that is, the interest of the mortgagee and the interest of the mortgagor, vested in one person. This operated to discharge the mortgage to the extent of the value of the property acquired by the mortgagee. In the year 1911 the other village was put up to sale and purchased by the decree-holder. Accordingly, the mortgaged property and all rights in respect of it were exhausted in the year 1911, and it was on this basis that the application for a personal decree was made. The application was made in the year 1915, but there was another application for a similar decree in the meantime (1913). If the present application can be regarded as an application for execution of the original mortgage decree, then perhaps the application which was made in 1913 would save limitation. If on the other hand the present application is not an application for execution of the original mortgage decree but is an application for a fresh decree, then the application should have been made within three years from the time when the right to make such application accrued, and the Article which governs the application is Article 181 of the Limitation Act. We find it impossible to hold that an application for a decree under the provisions of Order XXXIV, Rule 6, is an application for the execution of the original decree, which was a decree for the sale of certain property. We think that it is an application in the original suit for a new decree and that it cannot be regarded as an application in execution, In a somewhat similar case-Bihari Lal v. Risheshar Dayal (1912) 9 A L. J. 569- Mr. Justice Chamier seems to have expressed the view that Article 181 governs an application for a decree under Order XXXIV, Rule 6. In this view the Order of the court below dismissing the application was correct, although the reasons for the court's decision may be open to question. We dismiss the appeal with costs.


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