1. This is an appeal from an order of the Additional Subordinate Judge of Madura, dismissing She appellant's application, dated 4th April 1932, under Order 34, Rule 6, Civil P.C., for a personal decree on the ground that the application was time barred. It was agreed in the lower Court that Aris 181, Lim. Act, applies to this case. That article gives a period of three years from 'the time when the right to apply accrues. The sale of the property in Court auction took place on 12th October 1925. There was an application to set aside the sale on the ground of fraud or irregularity, which was dismissed on '22nd February 1926 upon which date the sale ?was confirmed. The judgment, debtor ?filed an appeal against the order of dismissal and that appeal was dismissed 'toy the High Court on 10th November 1930. The dispute is as to when the right to apply under Order 34, Rule 6, Civil P. C, accrued. The respondents successfully contended in the lower Court that 'the right accrued on the date of the confirmation of the sale, namely 22nd February 1926. If that contention is correct, then the application was clearly time-barred. The appellant contended an the lower Court and here that the right accrued only on the date of the dismissal of the appeal in which case the application was in time. In support of this appeal reference was made to Chandramani Shab v. Anarjan Bibi 1934 PC 134, a decision of the Privy Council.
2. In that case the Subordinate Judge ?disallowed the application under Order 21, Section. 90 to set aside a sale in execution and made ah order under Rule 92(1) confirming the sale and there was an appeal from that disallowance to the High Court which was dismissed; and it was held that the three years' period provided by the Limitation Act, 1908, Schedule 1, Article 180, for an application under Order. 21, Rule 95 by the purchaser for delivery of possession runs from the date of the order on appeal, the High Court having under the Code of Civil Procedure, Section 107(2), the same powers as the Subordinate Judge and the 'time when the sale becomes Absolute' for the purpose of Article 180 is when the High Court disposes of the appeal. It is true that that case is a decision upon an application by the purchaser for delivery of possession and is a decision upon Article 180 under which time does not begin to run until the sale has become absolute, whereas under Article 181 time begins to run from the date when the right to apply accrues; but it seems to me that until the sale has become absolute, which according to their Lordships of the Privy Council, where there is an appeal, is not until the date of the appellate order, it has not been finally determined whether the sale proceeds ore or are not sufficient to satisfy the, decree-holder's decree and that until that has been ascertained, the decree-holder cannot apply for a personal decree. If the judgment-debtor's appeal against the order dismissing his application to set aside the sale had been successful in the High Court, the sale would have been set aside and a re-sale would have taken place which might have resulted in there being an even larger deficiency or no deficiency at all. Although the sale was confirmed upon the dismissal of the judgment-debtor's application, by reason of the appeal the question of whether there was or was not a deficiency was thus re-opened. On p. 952 their Lordships say:
In considering the meaning of the words in Article 180, Lim. Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the sale; in that case, of course, there could be no confirmation of the sale as far as. the Subordinate Judge was concerned as there would be no sale to be confirmed. But if, on appeal, the High Court allowed the appeal, and disallowed the application to set aside the sale, the High Court would then be in a position to confirm the sale, and, on such an order of confirmation by the High Court, the sale would become absolute. Again, take a case in which the Subordinate Judge disallowed the application to set aside the sale; there would then be confirmation of the sale by the Subordinate Judge and the sale would become absolute as far as his Court was concerned. If the High Court allowed an appeal, and set aside the sale, there would then be no sale, and, of course, no confirmation and no absolute sale;
The result is that where there is an appeal from an order of the Subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180, Lim. Act, until the disposal of the appeal, even though the Subordinate Judge may have confirmed the sale, as he was bound to do, when he decided to disallow the application.
3. I am clearly of the view that, where there is an appeal, the decree-holder's right to apply for the personal decree does not accrue until the sale has be-' come absolute. In considering Article 182(2) Lim. Act, their Lordships of the Privy Council stated in Negendrnath De v. Sureshchandra De 1932 PC 165:
It is at least an intelligible rule that, so long as there is any question sub-judice between any of the parties, those affected shall not be compelled to pursue the so-often thorny path of execution, which, if the final result is against them, may lead to no advantage. Nor, in such a case as this, is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and, if he is virtually inclined, there is nothing to prevent his paying what he owes into Court.
4. Those words seem to be particularly applicable to this case. By reason of the appeal there an all-important question was sub-judice between the parties, namely, whether the sale should be set aside or whether it should be confirmed. If, during the pendency of that appeal, the decree-holder had applied for a personal decree and executed that decree, and if the final result of the appeal had been the setting aside of the sale, the personal decree would have been of no advantage to the decree-holder and he would have been compelled to waste time and money all to no useful purpose. In Jowad Hosasain v. Gendan Singh 1926 PC 93, it was held by the Privy Council that where there has been an appeal from a preliminary mortgage decree, the period of three years within which, under the Limitation Act, Schedule 1, Article 181, an application for a final decree under Order 34, Rule 5, Sub-rule 2, must be made, runs from the date of the decree of the appellate Court, not from the expiry of the time for payment fixed by the preliminary decree. In Venkayy v. Sathiruju 1921 Mad 414, it was hold by Wallis, C. J., and Oldfield, J., chat an application for a final decree for sale under Order 34, Rule 5, Civil P. C, is governed by Article 181, Lim. Act, and the starting point, in cases where there has been an appeal from the preliminary decree, is the date of the appellate decree whether the latter confirmed or varied the preliminary decree. The respondents relied upon Krishnabandhu Ghatak v. Panchkari Saha 1931 Cal 166 where it was held that the right to apply for a decree against the defendant for the balance, under Order 34, Rule 6, Civil P. C, does not accrue until the Court has put a seal of finality to the proceedings by confirming the sale-under Order 21, Rule 92 and that, once this right has accrued, 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. This was a decision of Mukerji and Mifcter, JJ., but in that case there was no appeal from the Court's order under Order 21,. Rule 92, Civil P. C, and the observations of the Bench with regard to the right of the decree-holder to wait until an appeal is disposed of were merely obiter and with great respect I am unable to-agree with them. Another case relied upon by the respondents was a Full Bench decision of the Calcutta Highs Court, namely Pell v. Gregory 1925 Cal 834, where it was held that the period of limitation for an application for personal decree under Order 31, Rule 6, Civil P.C, is three years and Art 181, Lim. Act, applies to such applications. In that case, unlike the present one, there had been no appeal and that case is of no assistance to the respondents nor is Juscurn Boid v. Pirthichand Lal Choudhary 1918 PC 151, a decision of the Privy Council of assistance. In that case an auction, purchaser sued to recover from certain decree-holders his purchase money in consequence of the sale being set aside. The Privy Council held that, assuming that Article 97 was the article applicable,, consideration failed when the sale itself was set aside in the first Court, that time began to run under Article 97 and that consideration did not fail afresh when the order setting aside the sale was affirmed by the appellate Court. The: distinction between that case and Venkayy v. Sathiraju 1921 Mad 414, already referred to, is pointed out by Wallis, C. J., on p. 716.
5. The result is that this appeal succeeds and the lower Court's order dismissing, the application must be set aside and the application must accordingly be disposed of according to law. The appellant will get her costs here and in the lower Court.
6. I agree. A personal decree could not have been made until it had been ascertained whether the sale proceeds of the mortgaged property were insufficient to pay the amount due under the decree, and this could not be discovered until the validity of the sale had been finally determined. Trie judgment-debtor impeached the validity of the sale. His application to have it set aside was dismissed, and the lower Court's order was upheld on appeal. In these circumstances, while the judgment-debtor's proceedings to set aside the sale were pending, can the decree-holder's right to apply for a personal decree under Order 34, Rule 6, be said to have accrued? I think not. Suppose the decree-holder had made application for a personal decree while the appeal was pending, he would at once have been met with the objection that the question of the sale was sub-judice, and that until this has been finally settled it was impossible to determine whether there was an insufficiency of sale proceeds to satisfy the mortgage decree. It has been held by their Lordships of the Judicial Committee in Jowad Hossain v. Gendan Singh 1926 PC 93, that where there has been an appeal from a preliminary mortgage decree the starting point of limitation imposed by Article 181 upon an application under Order 34, Rule 5, is the date of the appellate Court's decree and not the date fixed for payment in the preliminary decree. There is no apparent reason why the same rule should not be applied when the proceedings in the suit have reached a later stage, and when the right of the decree-holder to a personal decree under Rule 6 is dependent on the determination of an appeal relating to the validity of the sale of the mortgaged property under the final decree. To hold otherwise might, as their Lordships have pointed out in Nagendranath De v. Sureshchandra De 1932 PC 165, result in compelling the decree-holder to take a fruitless step.