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 are relevant 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 the Financial 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.) This application has been made on 7th Oct. 1974.
(3.) 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.;