1. This is a defendant's appeal from an order of remand passed by the District Judge. A preliminary decree for sale had been passed under Order 34, Rule 4, directing the sale of certain mortgaged properties. The final decree was passed on 16th March 1929. The mortgage property was sold at auction on 30th January 1930 for a smaller amount than the mortgage debt. On 8th March 1930, the sale was confirmed, the objections filed by the judgment-debtor having been overruled. An appeal was preferred and was disposed of on 13th January 1933, under which the order of confirmation was affirmed. The mortgage deed in question had been executed on 21st July 1914, and the mortgage money was payable in six years. The suit was brought in 1923, that is to say, well within six years of the period fixed for payment. The plaintiff was, therefore, entitled to a personal decree as there was a registered deed. On 11th July 1934 he applied for a personal decree under Order 34, Rule 6, to which many objection were raised. They have been decided against the judgment-debtor.
2. A new point is now taken for the first time in this appeal that the application by the decree-holder under Order 34, Rule 6 was by itself barred by time because it was not made within three years of the order confirming the sale. No doubt the application cannot be treated as an application for the execution of a decree and is, therefore, governed by Article 181, Lim. Act. The question, however, is from what time the period of limitation should begin to run. Under Order 34, Rule 6, where the net proceeds of any sale held under that Order are found insufficient to pay the amount due to the plaintiff, the Court, on application made by the plaintiff if the balance is legally recoverable from the defendant, can pass a decree for such balance. Now it was first ascertained by the trial Court when the sale was confirmed that the amount of sale proceeds was not sufficient to pay the amount due to the plaintiff, but that order was appealed from and the appellate Court might have come to a contrary conclusion if it had set aside that order. It would have directed a fresh sale to be held which might have fetched a larger amount. It cannot therefore be said that it was definitely ascertained as soon as the first Court confirmed the sale that the sale proceeds were insufficient to pay the whole amount. It is far more reasonable to hold that it was only when the appellate Court finally decided that the sale should stand that it was ascertained definitely that the amount realised was in-j sufficient to pay the decretal amount. The learned advocate for the appellant relies on certain remarks made by the Calcutta High Court in Krishnabandhu Ghatak v. Panchkari Saha : AIR1931Cal166 the learned Judges remarked that:
Once the right accrues, time begins to run and the uncertainty caused by an appeal or other-proceedings taken, need not by itself be held sufficient to suspend the operation of the statute or to entitle the plaintiff to get a deduction.
3. On the other hand, the view taken by the Madras High Court in Rajambal v. thangam : AIR1935Mad640 is that time should begin to run from the date when the appellate Court finally decides that the sale should be confirmed. The view taken by the Madras High Court appeals to us and we think it far more reasonable to hold that so long as there is not absolute finality, it should not be held that it has been definitely ascertained that the amount realised is insufficient to pay the decretal amount. It is only when the appellate Court finally decides the matter, and all uncertainties are removed, that the right to apply accrues. It is not disputed that the present application was made within three years. We accordingly think that there is no force in this appeal. 'We therefore dismiss this appeal.