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Sahu Radha Krishna Vs. Tej Saroop and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in123Ind.Cas.321
AppellantSahu Radha Krishna
RespondentTej Saroop and ors.
Cases ReferredGanesh Lal Pandit v. Khetramohan Mahapatra
Excerpt:
.....i, articles 66, 116 - civil procedure code (act v of 1908), order xxxiv, rule 6--claim for personal decree on registered mortgage-deed--limitation--proper, stage for deciding the question. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]. - 3. as, however, the question has been distinctly decided by the courts below, it is convenient to dispose of the plea of limitation. (1903)..........himself had asked for a personal decree, and that such personal decree was barred by the three years rule.2. it seems to me that the proper stage for deciding such a point is after the net proceeds of the sale have been found to be insufficient to pay the decretal amount, order xxxiv, rule 6 provides that where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, the court may pass a decree for such amount if the balance is legally recoverable. the words 'found to be' have been newly added in this rule and did not find a place in section 90 of the transfer of property act. old rulings are to my mind not now applicable. so long as it has not been ascertained that the sale proceeds are insufficient, no question for the passing of a.....
Judgment:

Shah Muhammad Sulaiman, A.C.J.

1. This is a plaintiff's appeal arising out of a suit for sale on the basis of a mortgage-deed, dated the 25th of February, 1921. The suit was instituted on the 12th of February, 1927, i. e., more than three years after the mortgage but within six years of it. In the plaint the plaintiff claimed a further relief that in case the mortgaged property be insufficient and any amount remains due to the plaintiff, the plaintiff may be authorised to apply for the preparation of a decree against the person and other properties of the principal defendants. The first Court held that the personal remedy was barred, as the suit had been brought more than three years after the bond and relied on certain remarks in Ganesh Lal Pandit v. Khetramohan Mohapatra 95 Ind. Cas. 839 : 53 I.A. 134 : 24 A.L.J. 615 : A.I.R. 1926 P.C. 56 : 43 C.L.J. 545 : 28 Bom. L.R. 931 : 24 L.W. 50 : 51 M.L.J. 82 : 7 P.L.T. 501 : (1926) M.W.N. 535 : 3 C.W.N. 591 : 5 Pat. 585 : 31 C.W.N. 25 (P.C.), The plaintiff preferred an appeal challenging the finding that a personal decree was barred. He also urged that the lower Appellate Court should not have decided that question at that stage. The learned District Judge has repelled both these contentions holding that the question was decided because the plaintiff himself had asked for a personal decree, and that such personal decree was barred by the three years rule.

2. It seems to me that the proper stage for deciding such a point is after the net proceeds of the sale have been found to be insufficient to pay the decretal amount, Order XXXIV, Rule 6 provides that where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, the Court may pass a decree for such amount if the balance is legally recoverable. The words 'found to be' have been newly added in this rule and did not find a place in Section 90 of the Transfer of Property Act. Old rulings are to my mind not now applicable. So long as it has not been ascertained that the sale proceeds are insufficient, no question for the passing of a personal decree really arises. This matter is made clear still further by Appendix A No. 45 which suggests a form for the plaint in a suit for sale and allows the plaintiff to ask for further relief that in case the proceeds of the sale are found to be inefficient to pay the amount due to the plaintiff, then that liberty be reserved to the plaintiff to apply for a decree for the balance. Similarly Appendix D Form No. 4 relating to a preliminary decree for sale shows that a direction that the plaintiff shall be at liberty to apply for a personal decree for the amount of the balance is to be entered in it. The occasion for applying, of course, comes later on when the proceeds are found to be insufficient. It is then that a personal decree can be passed.

3. As, however, the question has been distinctly decided by the Courts below, it is convenient to dispose of the plea of limitation. It cannot be doubted that under the old Limitation Act the great preponderance of opinion in all the High Courts had been that Article 116 of the Limitation Act applied to suits for recovery of money on a registered document. The earliest Fall Bench case of this Court was that of Husain Ali Khan v. Hafiz Ali Khan 3 A. 600 (F.B.). In the leading case of Ram Din v. Kalka Prasad 12 I.A. 12 : 7 A. 502 : 4 Sar.P.C.J. 619 (P.C.) their Lordships of the Privy Council laid down that the Article 132 of the Limitation Act provides the period of limitation of twelve years as against the mortgaged property, but that period did not apply to the personal remedy which the instrument carried. The head-note appears to be slightly misleading as in the body of the judgment their Lordships did not lay down that the rule of three years applied to registered security also. They referred to three years' rule for simple money demands and single bonds etc., and to six years rule as regards foreign judgments and compound registered securities. This case was followed by the Calcutta High Court in Miller v. Runja Nath Moulick 12 C. 389 : 10 Ind. Jur. 376 where it was remarked that a period of six years was applicable to the personal remedy on the basis of a registered mortgage-deed.

4. The applicability of Article 116 to claims under registered bonds was accepted by all the High Courts with the exception of one solitary case of this Court Ram Narain v. Kamta Singh 26 A. 138 : A.W.N. (1903) 210. The new Limitation Act was passed in 1908 and the Legislature reproduced the language of Article 116 and of the other relevant Articles. It is, therefore, a fair presumption that the correctness of the old view was accepted.

5. The weighty pronouncement of their Lordships of the Privy Council in Tricomdas Cooverji Bhoja v. Gopinathji Thakur 39 Ind. Cas. 156 : 44 I.A. 65 : 1 P.L.J. 262 : 15 A.L.J. 217 : 25 C.L.J. 279 : 32 M.L.J. 357 : 21 M.L.T. 262 : 21 C.W.N. 577 : (1917) M.W.N. 363 : 5 L.W. 654 : 19 Bom. L.R. 450 : 44 C. 759 (P.C.) in which Ram Narain's case 26 A. 138 : A.W.N. (1903) 210 was expressly disapproved, removed any doubt that there might have exited. Although Article 110 was in terms applicable to suits for arrears of rent, their Lordships ruled that the document being a registered one, Article 116 was the Article to be applied. Since then the view has uniformly prevailed in the Indian Courts that the personal remedy can be enforced on the basis of a registered deed within six years under Article 116. I may refer to a recent Full Bench case of this Court Shib Dyal v. Meharban 69 Ind. Cas. 981 : 45 A. 27 at pp. 41, 42 : 20 A.L.J. 819 : A.I.R. 1923 All 101 (F.B.).

6. The Courts below, however, have thought that the remarks of their Lordships in the case of Ganesh Lal Pandit v. Khetrarnohan Mahapatra 95 Ind. Cas. 839 : 53 I.A. 134 : 24 A.L.J. 615 : A.I.R. 1926 P.C. 56 : 43 C.L.J. 545 : 28 Bom. L.R. 931 : 24 L.W. 50 : 51 M.L.J. 82 : 7 P.L.T. 501 : (1926) M.W.N. 535 : 3 O.W.N. 591 : 5 Pat. 585 : 31 C.W.N. 25 (P.C.) overrule the previous decisions. In that case the suit was brought more than ten years after the date of the mortgage and it was immaterial whether the three years' rule or the six years' rule applied. In either view the personal claim was barred by time. Further more, there is a passage in the middle of page 136 which might suggest that the principal mortgage purporting to have been executed by the lady was not executed in compliance with the provisions of the law so as to make it binding on her. If there was any defect of registration, the three years' rule would at once become applicable. Their Lordships quoted passages from the leading case of Ram Din v. Kalka Prasad 12 I.A. 12 : 7 A. 502 : 4 Sar.P.C.J. 619 (P.C.) and also referred with approval to the Calcutta case of Miller v. Runga Nath Moulick 12 C. 389 : 10 Ind. Jur. 376, and then remarked that the claim for the enforcement of the personal covenant had become barred under Article 66. As the point did not arise directly in the case and indeed the question was immaterial, no previous authorities appear to have been cited before their Lordships.

7. This case has been considered by a Full Bench of the Madras High Court in the case of Ratnasabapathy Chettiar v. Devasigamony Pillai 116 Ind. Cas. 817 : 52 M. 105 : A.I.R. 1929 Mad. 53 : 29 L.W 143 : Ind. Rul. (1929) Mad. 609 : 56 M.L.J. 10 (F.B.) and by the Oudh Chief Court in the case of Jai Indra Bahadur Singh v. Khairati Lal 113 Ind. Cas. 469 : 5 C.W.N. 836 : A.I.R. 1928 Oudh 465 : Ind. Rul. (1929) Oudh 73 : 4 Luck. 107. The learned Judges have come to the conclusion that the case of Ganesh Lal Pandit v. Khetramohan Mahapatra 95 Ind. Cas. 839 : 53 I.A. 134 : 24 A.L.J. 615 : A.I.R. 1926 P.C. 56 : 43 C.L.J. 545 : 28 Bom. L.R. 931 : 24 L.W. 50 : 51 M.L.J. 82 : 7 P.L.T. 501 : (1926) M.W.N. 535 : 3 O.W.N. 591 : 5 Pat. 585 : 31 C.W.N. 25 (P.C.) cannot be taken to have overruled the previous decisions and is not a direct authority for the view that the claim on even a registered document is governed by the three years' rule. I fully agree with the view expressed in these cases. Until there is a clear pronouncement of their Lordships of the Privy Council, I cannot hold that the view expressed by the Indian High Courts in a long series of cases has been definitely overruled. The claim for the personal remedy in the present case is, therefore, not barred by limitation.

Mukerji, J.

8. I agree.

King, J.

9. I also agree and have no-thing to add.

10. Our answer is that the claim for the personal remedy in the present case is not barred by limitation, though this question need not have been decided at this stage.


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