Bose, J. - (1.) The main question which arises for determination in this appeal is whether the Respondent's application for final decree for sale of certain mortgaged properties, in a mortgage suit, is barred by limitation. Bachawat J. who originally heard this application, has passed a final decree for sale overruling the contention of the mortgagor appellant that the application is barred by limitation.
(2.) Before us, the learned Advocate for the appellant has raised the question of limitation and another point which was not raised before the trial Court, namely, whether the notice of the application for final decree purported to have been given by the respondent under Section 34 of the Bengal Money Lenders Act, 1940, is invalid, not being in the form prescribed by the Rules framed under the provisions of the Bengal Money Lenders Act.
(3.) Adverting to the question of limitation, it appears that the preliminary decree for sale was passed on the 10th July 1953 under Section 34 of the Bengal Money Lenders Act read with Order 34 of the Code of Civil Procedure, declaring a sum of Rs. 16354/5/8 pies as being due for principal and interest. The decree further provided inter alia as follows:-- "And it is hereby further ordered and decreed that the defendant do by four equal instalments pay into court to the credit of this suit the sum of Rs. 16354/5/8 pies, the first of such instalments to be paid by the 1st day of December 1953 and the subsequent instalments by the first day of December in each year and the taxed costs of the suit awarded to the plaintiff.....And it is hereby further ordered and decreed that in default of payment as aforesaid, the plaintiff may after giving notice to the defendant and subject to the provisions of the Bengal Money Lenders Act, 1940, apply to the Court for a final decree for the sale of the mortgaged properties .....";