1. This is an appeal from an order of the Additional Subordinate Judge of Madura dismissing the appellant's application, dated April 4, 1932, under Order XXXIV, Rule 6 of the Civil Procedure Code, for a personal decree on the ground that the application was time-barred. It was agreed in the lower Court that Article 181 of the Limitation 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 en October 12, 1925. There was an application to set aside the sale of the ground of fraud or irregularity, which was dismissed on February 22, 1926, upon which date the sale was confirmed. The judgment-debtor filed an appeal against the order of dismissal and that appeal was dismissed by the High Court on November 10, 1930. The dispute is as to when the right to apply under Order XXXIV, Rule 6, Civil Procedure Code, accrued. The respondents hero successfully contended in the lower Court that the right accrued on the date of the confirmation of the sale, namely February 22, 1926. If that contention is correct, then the application was clearly time-barred. The appellant contended in 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 Ghandramani Saha v. Anarjan Bibi a decision of the Privy Council. In that case the Subordinate Judge disallowed the application under Order XXI, Rule 90, to set aside a sale in execution and made an order under Rule 92(1) confirming the sale and there was an appeal from that disallowance lo the High Court which was dismissed: and it was held that the three years period provided by the Indian Limitation Act, 1908, Schedule I, Article 180, for an application under Order XXI, Rule 95, by the purchaser for delivery of possession runs from the date of the order on appeal, the High Court having under the Civil Procedure Code, under Section 107(2) the same powers as the Subordinate Judge and the 'time when the sale becomes absolute' for the purposes of Article 180 under which time does not begin to run until the sale has become absolute, whereas under Article 181 time begins from the date when the right to apply accrues: but it seems tome 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 apple late order, it has not been finally determined whether the sale proceeds are 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 reopened. On page 952 of 61 Cal. Chandramani Saha v. Anarjan Bibi their Lordships say:
In considering the meaning of the Words in Article. 180 of the Limitation Act, it is useful to consider the converse case. Take a case in which the Subordinate Judge allowed the application to set aside the tale; in that case, of come, there could be no confirmation of the sale as far as the Subordinate Judge was concerned as there would be no sale to be conformed. 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 have 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, 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 of the Limitation 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.
2. 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 Bale has become absolute. In considering Article 182(2) of the Limitation Act, their Lordships of the Privy Council stated in Nagendranath Dey v. Sureshchandra De .
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, virtuously inclined, there is nothing to prevent his paying what he owes into Court.
3. Those words seem to me 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 the 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 Hussain v. Gendan Singh 6 Pat. 24 : 98 Ind. Cas. 499 : 24 A,L.J 765 : A.I.R. 1926 P.C. 93 : (1926) M.W.N 519 : 44 C.L.J. 63 : O.W.N. 690 : 24 L.W. 394 : 7 P.L.T. 575 : 31 C.W.N. 58 : 51 M.L.J. 781 : 28 Bom. L.R. 1395 : 53 I.A. 197 (P.C.) 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 Indian Limitation Act, Schedule I, Article 181, an application for a final decree under Order XXXIV, Rule 5, Sub-rules (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 Jayanti Venkiyya v. Damisetti Sathiraju 44 M. 741 : 130 Ind. Cas. 470 : 41 M.L.J. 117 : 14 L.W. 180 it was held by Wallis, C. J., and Old field, J. that an application for a final decree for sale under Order XXXIV, Rule 5, Civil Procedure Code, is governed by Article 81 of the Limitation 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. Panchlcari Saha : AIR1925Cal834 where it was held that the right to apply for a decree against the defendant for the balance, under Order XXXIV, Rule 6, Civil Procedure Code, does not accrue until the Court has put a seal of finality to the proceedings by confirming the sale under Order XXI, 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 to be held sufficient to suspend the operation of the statute or to entitle the plaintiffs get a deduction. This was a decision, of Mukerji and Mitter, JJ, but in that case there was no appeal from the Courts order under Order XXI, Rule 92, Civil Procedure Code, and the observations of the Bench with regard to the fight 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 High Court, namely, Pell v. Gregory : AIR1925Cal834 where it was held that the period of limitation for an application for personal decree under Order XXXIV, Rule 6, Civil Procedure Code, is three years and Article 181 of the Limitation Act applies to such application. In that case unlike the present one, there had been no appeal and that case is of no assistance to the respondent nor is Jascuran Boid v. Prithiehand Lal Chowdhury 46 C 670 : 50 Ind. Cas. 444 : 17 A.L.J 514 : 36 M.L.J. 557 : 23 C.W.N. 721 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 30 C.L.J. 71 : 26 M.L.T. 131 : 16 L.W. 416 : 46 I.A. 52 (P.C) 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 tinder 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 Jayanti Venkayya v. Damisetti Satkiraju 44 M. 714 : 64 Ind. Cas. 470 : 41 M.L.J. 117 : 14 L.W. 180 already referred to, is pointed out by Wallis, C.J., on page 716 Page of 44 M.--[Ed.]
4. 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.
5. A personal decree would 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. The 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 XXXIV, 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 Hussain v. Gendan Singh 6 Pat. 24 : 98 Ind. Cas. 499 : 24 A.L.J. 765 : A.I.R. 1926 P.C. 93 : (1926) M.W.N. 591 : 44 C.L.J. 63 : 3 O.W.N. 690 : 24 L.W. 394 : 7 P.L.T. 575 : 21 C.W.N. 58 : 51 M.L.J. 781 : 28 Bom. L.R. 1395 : 53 I.A. 197 (P.C.) 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 XXXIV, 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 right of the decree-holder to a personal decree tinder Rule 6 is dependant 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 Day v. Sureshchandra De result in compelling the decree-holder to take a fruitless step.