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Surya Narayan Sahu Vs. Banamali Sahu - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 137 of 1965
Judge
Reported inAIR1968Ori206; 34(1968)CLT1185
ActsCode of Civil Procedure (CPC) , 1908 - Order 34, Rule 6; Limitation Act, 1908 - Schedule - Article 181
AppellantSurya Narayan Sahu
RespondentBanamali Sahu
Appellant AdvocateP.V. Ramdas, Adv.
Respondent AdvocateA.K. Rao, Adv.
DispositionAppeal dismissed
Cases ReferredKempe Gowda v. Anne Gowda
Excerpt:
.....are not good law]. - when a sale takes place and the bid is accepted by the court, the purchaser is to deposit forthwith 25 per cent of the purchase-money on failure the property has to be re-sold under order 21. rule 84 c......was sold is definitely known and the decree-holder is in a position to ascertain whether the net sale proceeds fall short of the amount due to the plaintiff and that the decree-holder cannot enlarge the time by waiting till the confirmation of sale this argument ignores the position that there may be several contingencies making it impossible for the decree-holder to ascertain on the date of the sale what the net proceeds of the sale amount would be and to what extent it would fall short of the dues. the position would be apparent if the various procedures whereby the property is resold or the sale is set aside are examined. when a sale takes place and the bid is accepted by the court, the purchaser is to deposit forthwith 25 per cent of the purchase-money on failure the property has.....
Judgment:

G.K. Misra, J.

1. Defendant 1 executed a simple mortgage bond for sell and on behalf of her minor son (defendant 2) on 20-9-47 in favour of the plaintiff for Rupees 4500 with interest at the rate of nine per cent per annum. In T M. S. No. 41 of 1953 plaintiff obtained a preliminary decree for RP 6846/10/- on 31-7-54. Final decree was passed on 18-7-56 for Rs. 11.857-30 p. The mortgage security was sold on 23-1-61 for Rs. ft 825-00 in E P. No. 265 of 1956 The sale was confirmed on 28-4-62. For the balance dues, plaintiff filed an application on 5-8-64 under Order 34, Rule 6, C. P C. for a personal decree. It was allowed by an order passed on 27-9-65. Against this order the appeal has been filed.

2. The only contention urged by Mr. Ramdas is that the application under Order 34. Rule 6, C P. C is barred by limitation as it was filed beyond three years from the date of sale it is conceded that if the starting point of limitation would be the date of confirmation of sale the application is within time The question is whether limitation would run from the date of the sale or from the date of confirmation of sale,

3. Order 34, Rule 6, C. P. C. runs thus-

'Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.'

There is no dispute that Article 181 of the Indian Limitation Act (Act IX of 1908) is applicable to such a case Article 181 may be quoted-

Applications for which no Three period of limitationis pro. years, vided elsewhere in thie schedule or by S. 48 of the Civil P.C., 1908.

Three years

When the right to applyaccrues.'

4. The question is when the right to make an application under O. 34. R. 6, C. P. C. accrues. As would appear from the language of Order 34, Rule 6, the right to apply accrues when the net proceeds of any sale are found insufficient to pay the amount to the plaintiff The contention of Mr. Ramdas is that on the sale being held, the exact amount for which the property was sold is definitely known and the decree-holder is in a position to ascertain whether the net sale proceeds fall short of the amount due to the plaintiff and that the decree-holder cannot enlarge the time by waiting till the confirmation of sale

This argument ignores the position that there may be several contingencies making It impossible for the decree-holder to ascertain on the date of the sale what the net proceeds of the sale amount would be and to what extent it would fall short of the dues. The position would be apparent if the various procedures whereby the property is resold or the sale is set aside are examined. When a sale takes place and the bid is accepted by the Court, the purchaser is to deposit forthwith 25 per cent of the purchase-money On failure the property has to be re-sold under Order 21. Rule 84 C. P C. Under Order 2 Rule 85, the full amount of purchase money payable shall be paid by the purchaser into Court before the Court closes on the 15th day from sale of the property. In case of default, there would be re-sale under Order 21. Rule 8R. The sale may be set aside under Order 21 Rule 89 on satisfaction of the necessary conditions prescribed therein. The sale may also be set aside under Order 21, Rule 90 on the ground of material irregularity or fraud in publishing or conducting the sale When the property is re-sold or the sale is set aside, there would be no net proceeds of the sale available for the discharge of the dues to the plaintiff. The date of sale cannot therefore be treated as the date from which the right to make an application under Order 34. Rule 6 accrues. The limitation must start from the date of confirmation of sale. On confirmation the aforesaid contingencies would not arise and the decree-holder would be in a position to determine whether the net proceeds of the sale are insufficient to pay his dues. Different High Courts have uniformly taken this view--see Krushnabandhu v. Panchakari, AIR 1931 Cal 166; Kempe Gowda v. Anne Gowda, AIR 1951 Mys 48 and Mst. Tulsi v Satru-han, AIR 1953 Pat 34.

5. On the aforesaid view, the impugned application is within the period of limitation.

6. In the result, the appeal fails and is dismissed, but there will be no order as to costs of this Court.

Patra, J.

7. I agree.


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