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Life Insurance Corporation of India Vs. Subkaran Mohansaria and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 1551 of 1958
Judge
Reported inAIR1978Cal589
ActsLimitation Act, 1963 - Schedule - Article 137; ;Code of Civil Procedure (CPC) - Order 34, Rule 6
AppellantLife Insurance Corporation of India
RespondentSubkaran Mohansaria and ors.
Appellant AdvocateBiswarup Gupta, Adv.
Respondent AdvocateP.K. Das, Adv.
Cases ReferredJanak Raj v. Gurdial Singh
Excerpt:
- .....on 15th march 1963 a preliminary decree was passed by consent. on 15th june 1964 there was a final decree for sale of premises no. 34 vivekananda road, calcutta by registrar, high court, original side. on 19th april, 1969 the property was put for sale by public auction by the registrar, high court, original side and one shri narayan saraf was declared the highest bidder and purchaser of the said property for a sum of rs. 3,05,000/- on 19th may 1969 an application was made by the defendants for setting aside the sale and for not confirming the said sale. on 12th jan. 1970 the said application was dismissed by sabyasachi mukharji, j. and the sale was confirmed. the operation of the said order was, however, stayed for a period of 10 days from 12th jan. 1970. on 21st jan. 1970 an appeal was.....
Judgment:
ORDER

Bimal Chandra Basak, J.

1. This is an application by Life Insurance Corporation of Indie, the plaintiff in this suit, for recording the death of Subkaran Mohansaria, for a personal decree for Rs. 1,46,048-74 P. against the defendants Nos. 2 and 3 and also against Swapan Kumar Das, Administrator-ad-Litem representing Subkaran Mohansaria since deceased, limited to the estate that came to his hands. The facts of this case, so far as they arerelevant for the purposes of this application, are as follows:--

On 19th April 1952 the defendants executed a registered mortgage in favour of the General Assurance Society Ltd. In consideration of a sum of Rs. 2,60,000/-with interest. Under the agreement in the said mortgage, the defendants covenanted to pay the said sum of Rs. 2,60,000/- by 19th April, 1953 and also to pay interest. The defendants failed to pay the amount according to such agreement and a sum of Rupees 3,35,473.60 P. became due. Thereafter the assets and liability of the General Assurance Society Ltd. stood transferred and vested in the plaintiff. On the 19th Sept. 1958 this suit was filed by the plaintiff against the defendants for a decree under Order 34 Rule 4 of the Civil P. C. in Form 5(a) or any other appropriate form of Appendix 'D' of the First Schedule. On 15th March 1963 a preliminary decree was passed by consent. On 15th June 1964 there was a final decree for sale of premises No. 34 Vivekananda Road, Calcutta by Registrar, High Court, Original Side. On 19th April, 1969 the property was put for sale by public auction by the Registrar, High Court, Original Side and one Shri Narayan Saraf was declared the highest bidder and purchaser of the said property for a sum of Rs. 3,05,000/- On 19th May 1969 an application was made by the defendants for setting aside the sale and for not confirming the said sale. On 12th Jan. 1970 the said application was dismissed by Sabyasachi Mukharji, J. and the sale was confirmed. The operation of the said order was, however, stayed for a period of 10 days from 12th Jan. 1970. On 21st Jan. 1970 an appeal was filed against the same and an application was made for stay of operation of the said order dated 12th Jan. 1970. Interim order was made on the said application staying the operation of the order appealed from. On 27th July 1971 the said appeal was dismissed with costs. On 15th Sept. 1971 an application was made by the auction-purchaser for depositing the balance purchase money. On 10th Nov. 1971 an order was made by S. C. Ghosh, J. on the application of the auction purchaser giving liberty to the auction purchaser to deposit on or before 31st of Dec. 1971 a sum of Rs. 2,28,7507- being the balance of the purchase money with Interest thereon and further directing the Registrar to transfer and pay to theFinancial Secretary and the Secretary and Treasurer of the State Bank of India with the privity of this Hon'ble Court a sum of Rs. 76,250/- less his commission. Both the two amounts were to be placed to the credit of the suit and upon payment of the balance of the purchase money and transfer of the deposit by the Registrar into Court as aforesaid the sale will be confirmed and a certificate of sale be granted to Shri Narayan Saraf. The balance consideration money was paid in Court by the auction purchaser on the 10th of Dec. 1971. On the 6th of June 1972 Hazra, J. directed payment of monies to the plaintiff's solicitor. Official Receiver was directed to pay to the plaintiff's solicitor the balance amount lying in his hand.

2-3. This application has been made on 7th Oct. 1974.

4. The only point raised in opposition to this application is that this application is barred by limitation. According to Mr. P. K. Das, learned Counsel appear-ing on behalf of the respondents, in this case Article 137 of the Limitation Act 1963 would apply according to which such an , application for personal decree, as contemplated by Order 34 Rule 6 of the Civil P. C. has to be made within three years when the right to apply accrues. According to Mr. Das in this particular case when the Registrar's sale was confirmed i.e. on 27th July 1971 the right to apply accrued. In any event Mr. Das submitted that such right to apply accrued on 15th Sept. 1971 when the application was made by the auction purchaser for depositing the balance purchase money. In support of his contentions Mr. Das relied on the following decisions. Francis Higgins Pell v. Minnie Gregory, AIR 1925 Gal. 834 (FB), Krishna Bandhu Ghatak v. Panchakari Saha AIR 1931 Cal. 166. Pradyumna Kumar Mulick v. Gopendra Mulick, AIR 1933 Cal. 251.

5. Mr. Biswarup Gupta learned Counsel appearing in support of the application admitted before me that the application is governed by Article 137 of the Limitation Act. It was further admitted that three years would start on the date of confirmation. There is no dispute between the parties regarding the same. However the contention of Mr. Gupta is that 10th Nov. 1071, when Ghosh J. passed the order, was the relevant date. He submitted that the orderfor confirmation of sale by Sabyasachi Mukharji J, was a wrong order. It was an application for setting aside the sale and no order for confirmation could be passed. Mr. Gupta also drew my attention to the provisions of Order 21 Rules 89, 90, 91, 92 and 93 and the provisions of Original Side Rules of this Court regarding the sale of property. Mr. Gupta has also submitted that the said sale could not become absolute if the property could be resold as could be done in this case even after the order of Sabyasachi Mukharji, J. The alternative submission of Mr, Gupta was that various matters remained to be done even after the order of Sabyasachi Mukharji J. and it was not possible for the decree holder to make an application for the personal decree before. In this context a reference was made also to the order of Hazra, J. which provided for payment of balance money out of collection made from the rents and accordingly it was submitted that it may be said that the right to apply actually arose from the date of order of Hazra, J. dated 6th June 1972.

6. In reply Mr. Das submitted that confirmation of sale and issue of sale certificate are two different things. The balance purchase money was to be put in before the certificate for sale was issued and accordingly there can be confirmation of sale before the issuance of sale certificate and the right to apply is not postponed until the sale certificate is issued. He submitted that there could not be two confirmations and that as soon as the application for setting aside the sale was dismissed the Court was bound to confirm sale. Accordingly when Sabyasachi Mukharji, J. dismissed the application for setting aside the sale, he was bound to confirm the sale as he did. In this connection Mr. Das relied on the following decisions Janak Raj v. Gurdial Singh : [1967]2SCR77 and Hukumchand v. Bansilal : [1967]3SCR695 .

7. In answer to this on behalf of the petitioner further submissions were made.

8. In my opinion this application is barred by limitation. It is not disputed that in respect of an application for personal decree under Order 34, Rule 6, the time starts to run from the date of confirmation of the sale. In the case of Krishna Bandhu Ghatak v. Panchkari Saha (AIR 1931 Cal 166) (supra) a Division Bench of this Court held, after consideration of the provisions of Order 21Rules 84, 85, 86, 89 etc. that the right to ep-ply for a personal decree does not accrue until the Court has put a seal of finality to the proceedings by confirming it under Order 21 Rule 92. In this context it was pointed out that once the right to apply has accrued, time begins to run and uncertainty caused by appeal and other proceedings taken need not itself be held sufficient to suspend the operation of the statute or entitle the plaintiff to get deduction. Another Division Bench of this Court in Pradyumna Kumar Mulick v. Gopendra Mulick (AIR 1933 Cal 251) (supra) followed the earlier Division Bench judgment and held that the date from which the time begins to run is the date of the order confirming the sale under Order 21 Rule 92 whether the decree holder's costs have been taxed or not.

9. In the present case such an order of confirmation was passed by Sabyasachi Mukharji, J. on the 12th Jan. 1970 and the appeal therefrom was dismissed on 27th July 1971 when the stay was vacated. Therefore it is 27th July 1971 when the confirmation of sale can be said to have been made. Right to apply accrued on that date and accordingly the application is barred by limitation. It is not open to the applicant at this stage to contend that Sabyasachi Mukharji, J. could not have confirmed the sale on the application of the judgment-debtor for setting aside the sale as he did on 12th Jan. 1970. In the application for setting aside the sale a specific prayer was made that the sale be not confirmed by the Court. The Court rejected the same and passed an order confirming the sale. Accordingly it cannot be said that Sabyasachi Mukharji, J. could not have passed an order confirming the sale on such application.

10. In any event It Is to be pointed out that if an application for setting aside the sale is dismissed, the Court has no option but to confirm the sale and for that reason no separate application is necessary. Sabyasachi Mukharji, J. was well within his jurisdiction in passing an order for confirmation of the sale while dismissing such application for setting aside the sale. This is also supported by the provisions of the Civil Procedure Code and also the decisions of the Supreme Court. In the case of Hukumchand v. Bansilal : [1967]3SCR695 (supra) it was made clear that where no application is made under Rule 89, or Rule 90 or Rule 91 or where suchapplication is made and disallowed, the Court shall make an order confirming the sale and thereupon the sale shall become absolute. It was also made clear that the provision of Order 34 does not give any mortgagor any right to ask for postponement of confirmation of sale in order to enable him to deposit the amount. In the case of Janak Raj v. Gurdial Singh : [1967]2SCR77 (supra) the judgment-debtor did not apply under Rule 89 for setting aside the sale but applied for setting aside the decree. The decree was reversed and after reversal an application was made by the auction purchaser under Rule 92 for confirmation of sale. In this connection the Court, after consideration of the relevant provisions of Order 21 held that ordinarily if no application for setting aside a sale is made under any of the provisions of Rules 89 to 91 of Order XXI or when any application under any of these rules is made and disallowed, the Court has no choice in the matter of confirming the sale and the sale must be made absolute.

11. I may point out further that the appeal preferred against the judgment ofSabyasachi Mukharji, J. has been dismissed and his order has now become final and binding on the parties. It is no longer open to any of the parties now to challenge any portion of the said order. Having regard to the same in my opinion It cannot be contended that the order of confirmation was not rightly passed.

12. Once the period starts to run it cannot be postponed. It is true that by the subsequent order Ghosh J. has also confirmed the sale. But in my opinion that would not make the period to start afresh. Further, in my opinion Mr. Justice Hazra's order does not make any difference in this case.

13. For the aforesaid reasons, I hold that this application so far as it relates to the prayer for personal decree under Order 34 Rule 6, is barred by limitation. There will be order in terms of prayer (a) but there will be no other order. There (sic) be no order as to costs.


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