JUDGMENT Das, J. - This is an appeal by Defendant No. 1 in a suit for recovery of money clue on a mortgage. The facts lie within a narrow compass and are more or less undisputed. 2. On the 9th June, 1927, the Defendant No. 2, Jogesh Chandra Chunder executed a simple mortgage bond in favour of Defendant No. 1, Sailen Chand Dutt, in respect of premises Nos. 9 and 10, Karim Bux Lane, to secure a loan of Rs. 15,000 with interest at Rs. 10 per cent, per annum with quarterly rests. 3. On the 26th November, 1928, the Defendant No. 1 borrowed from the Plaintiffs Rai Taritbhusan Roy Bahadur and Pulin Krishna Roy a sum of Rs. 6,000 on a promissory note, with interest at 10 per cent. per annum with quarterly rests and as collateral security deposited the said mortgage bond dated the 9th June, 1927. On the 23rd July, 1930, the Defendant No. 1 borrowed a further sum of Rs. 1,431 annas 10 only and to secure the sum due on his original loan and the new advance aggregating a sum of Rs. 8,500 executed an indenture of English mortgage, agreeing to pay interest at 10 per cent, per annum with quarterly rests. 4. The Defendant No. 1 sued Defendant No. 2, on his mortgage in Title Suit No. 209 of 1930 and recovered a preliminary decree on the 31st July, 1931, which was made final on the 16th May, 1932, for a sum of Rs. 18,741 annas 4 only. In execution of this decree the Defendant No. 1 auction-purchased the said mortgaged properties for Rs. 11,500 on the 14th August, 1937, in Title Execution Case No. 107 of 1935. 5. On the 30th July, 1932, the Plaintiffs sued for enforcement of their mortgage in Title Suit No. 189 of 1932 impleading Defendants Nos. 1 and 2. On the 18th August, 1933, the Plaintiffs obtained a preliminary decree. The preliminary decree as drawn up did not reserve a liberty to apply for a supplemental decree under Or. 34, r. 6, Civil Procedure Code. By an order dated the 23rd June, 1934, the preliminary decree was amended and the Plaintiff was found to be entitled to recover Rs. 9,094 annas 7 only as principal with compound interest at the bond rate up to the 30th January, 1932, with further interest at 6 per cent. 34, r. 6, Civil Procedure Code. By an order dated the 23rd June, 1934, the preliminary decree was amended and the Plaintiff was found to be entitled to recover Rs. 9,094 annas 7 only as principal with compound interest at the bond rate up to the 30th January, 1932, with further interest at 6 per cent. per annum till realisation. The amended preliminary decree was made final on the 7th July, 1934. in execution of this decree the Plaintiffs auction-purchased the said properties for Rs. 11,565 on the 26th January, 1938, in Title Execution Case No. 33 of 1937. This sale was set aside on the 7th January, 1939, as a result of proceedings under Or. 21, r. 90, Civil Procedure Code. Meanwhile on the 13th June, 1936, the deity Sri Sridhar Saligram Thakur through one of the shebaits filed a suit (Title Suit No. 1 of 1936, 1st Additional Subordinate Judge at Alipore) against the Plaintiffs Defendants Nos. 1 and 2. On the 24th March, 1938, the Court by its decree declared inter alia that the said mortgaged properties were inalienable debutter property of the deity that the mortgages in favour of the Plaintiffs and Defendant No. 1 were not binding on the deity, and that the decrees passed in Title Suits Nos. 209 of 1930 and 189 of 1932 were not binding on the deity. 6. The Plaintiffs and Defendant No. 1 preferred two appeals to this Court; both the appeals were dismissed by this Court on the 20th June, 1941, the judgment is reported as Tarit Bhushan Rai v. Sri Iswar Sridhar Salagram Shila 45 C.W.N. 932 (1941). On the 12th January, 1942, the Plaintiffs filed a petition under Or. 34, r. 6, Civil Procedure Code, praying "for a personal decree for the entire decretal amount with interest and costs against the Defendant No. 1, Sailen Chand Dutt." 7. The Defendant No. 1 filed a petition of objection, inter alia, on the grounds first, that as the mortgaged properties were not sold in execution of the decree under Or. 34, r. 5, Civil Procedure Code, Or. 34, r. 6, CPC was not applicable; secondly, that the application for a personal decree was barred by limitation. 8. The objections were overruled by the Court below, and a personal decree under Or. 34, r. 6, CPC was passed for a sum of Rs. 34, r. 5, Civil Procedure Code, Or. 34, r. 6, CPC was not applicable; secondly, that the application for a personal decree was barred by limitation. 8. The objections were overruled by the Court below, and a personal decree under Or. 34, r. 6, CPC was passed for a sum of Rs. 14,407 annas 2 pies 9 and for costs, Rs. 61 as. 5 pies 9 only. 9. The Defendant No. 1 has preferred this appeal. Mr. Hiralal Chakravarty appearing for the Appellant has pressed the following points:-- (1) As the mortgaged properties were not sold in execution of the final decree under Or. 34, r. 5 (2) of the Civil Procedure Code, no decree could be passed under Or. 34, r. 6 of the Code. (2) That as the right to apply for a decree under Or. 34, r. 6. of the CPC first accrued on the 24th March, 1938, when the deity's suit was decreed by the trial Court, limitation began to run from that date and the running of time was not interrupted by the filing of the appeal; the present application which was filed on the 12th January, 1942, beyond 3 years was barred by limitation under Art. 181 of the Indian Limitation Act. 10. We shall now deal with the first point. Or. 34 r. 6, of the CPC reads as follows: Where the net proceeds of any sale held under the last preceding rule are found to be insufficient to pay the amount due to the Plaintiff, the Court, on application by him may, if the balance be legally recoverable from the Defendant otherwise than out of the property sold, pass a decree for such balance. 11. The indenture of mortgage in Plaintiff's favour contains a personal covenant to pay the loan, the fact that the preliminary decree did not expressly reserve a right to apply for a decree under Or. 34, r. 6 of the Code, does not disentitle the mortgagee to apply for a personal decree, Rai Sahib Sunder-mull v. John Carapiet Galstaun 33 C.W.N. 300 (303-304) (1928). 12. The Appellant strongly relied on the opening words of the rule and contended that the literal meaning of those words clearly indicated that the right to a supplemental decree under rule 6 only arose if the mortgagee decree-holder took recourse to his remedy by a sale of the mortgaged property. 12. The Appellant strongly relied on the opening words of the rule and contended that the literal meaning of those words clearly indicated that the right to a supplemental decree under rule 6 only arose if the mortgagee decree-holder took recourse to his remedy by a sale of the mortgaged property. If he failed to take this step or was unable to do so, his sole remedy was by a suit on the personal covenant and not by an application under r. 6. 13. The validity of the contention depends on the question whether the opening words of the rule are a condition precedent to the applicability of the rule. 14. In the case of Jeuna Bahu v. Parmeshwar Narayan Mahta L.R. 46 IndAp 294 (1918) which fell to be decided under the corresponding rule vis., sec. 90 of the Transfer of Property Act, a combined decree for sale was passed in a mortgage suit; the decree also provided that if the proceeds of sale are not sufficient to cover the mortgage debt with interest, the Defendant shall pay the balance. The sale proceeds of the mortgaged property having proved insufficient, the mortgagee decree-holder brought to sale certain property outside the mortgage. In the suit out of which the Privy Council appeal arose, the Plaintiff contended that the decree in so far as it provided for a personal decree was invalid because of the opening words of the rule, and the sale held in execution of that decree was ultra vires. In repelling this contention, Lord Buck-master observed at p. 298: "The Appellants contend that the opening words establish a condition precedent to the power of decreeing payment of the balance that the mortgaged property must first be sold and found insufficient to satisfy the debt. It is undoubtedly a strict and technical construction of the statute and one for which no reason can be assigned, and from which no advantage can possibly be derived by any mortgagor. It would be unfortunate if the statute by its terms rendered necessary the adoption of this contention, but in their Lordships' opinion it is not necessary so to construe the Act." 15. Their Lordships proceeded to hold that the decree could reserve a right to apply for a personal decree in the preliminary decree even though the mortgaged properties had not been sold. Their Lordships proceeded to hold that the decree could reserve a right to apply for a personal decree in the preliminary decree even though the mortgaged properties had not been sold. If the opening words of r. 6 are not a condition precedent to an application under that rule, does it follow that such application could be made even if the mortgaged properties are available? This, of course, is not the logical conclusion. In fact it is now firmly established that recourse must be had to the mortgaged properties in the first instance. Rai Saheb Sundermull v. John Carapiet Galstaun 54 C.L.J. 400 (404) (1931). Where, however, those properties are nonexistent, or are not available or a sale thereof would be futile either because the mortgagor has no title or the mortgagor's title has been lost by a rent or revenue sale or has become valueless because of a permanent title, e.g., decree or sale at the instance of a prior mortgagee, the law does not compel the mortgagee decree-holder to resort to such fruitless remedies but entitles him to apply for a supplemental decree under Or. 34. r. 6 of the Code straightaway. This proceeds on the principle, well stated by Sadasiva Ayyar. J., in Periyasami Kone v. Muthia Chettiar ILR 38 Mad. 677 (1913), vis.: "The Court will not do a vain thing nor will it compel a man to do a fruitless thing." Thus in Shanmuga Pillai v. Ramanathan Chetti ILR 17 Mad. 309 (314) (1894) where the mortgagor was found to have no title to the mortgaged property, the Court passed a money decree against the mortgagor. 16. In the case of Adhar Chandra Naskar v. Swarnamoyi Dasi 32 C.W.N. 1160 (1923) this Court upheld a decree under Or. 34, r. 6 of the Code, although the mortgagee decree-holder did not sell the mortgaged properties which had already been sold in execution of a prior mortgagee's decree. The principle governing these cases clearly governs the present case where as a result of adjudication in a Court of law in a suit to which the mortgagor and mortgagee were both parties, the mortgagor was found to have no title to the mortgaged properties. 17. The above principle has been applied by the different High Courts in the following cases cited by Mr. 17. The above principle has been applied by the different High Courts in the following cases cited by Mr. Gupta for the Respondents : Rai Saheb Sunder Mull v. John Carapiet Galstaun 33 C.W.N. 300 (303 304) (1928) affirmed by the Privy Council in Rai Saheb Sundermail J. John Carapiet Galstaun 54 C.L.J. 400 (404) (1921); Gurumukh Singh v. Hari Chand ILR 17 Lah. 67 (1935), where the mortgaged property was sold in execution of a prior mortgage decree; Mahadeo Prosad Pal Singh v. Jai Karan Singh ILR 8 Luck. 217 (F.B) (1932) where the mortgage was inoperative as regards some of the mortgaged properties; Badal Singh v. Debi Saran Dhar Dube ILR 49 All. 506 (1927) where the mortgage sale was subsequently held to be void in a suit by the mortgagor's son; Makhan Saha v. Mt. Bibi Kamrun Nissa ILR 17 Pat. 538 (1938) where some of the mortgaged properties were sold in execution of a prior mortgage decree; Periyasami Kone v. Mathia Chettiar ILR 38 Mad. 677 (1913) where the mortgagor had no interest in some of the mortgaged properties; Hari Janardhan Limaye Vs. Krishnaji Balkrishna Bhate, AIR 1928 Bom 323 , where a part of the mortgaged property was destroyed by fire. 18. The decision in Chand Mull Babu v. Ban Behari Bose ILR 50 Cal. 718 (1923) on which reliance was placed on behalf of the Appellant does not militate against the view taken above; it rather supports the said view. 19. The first contention of the Appellant, therefore, fails. 20. The second contention raised on behalf of the Appellant, vis., the question of limitation, has now, to be considered. 21. It is conceded on both sides that Article 181 of the Limitation Act applies to this case, presumably on the authority of the Full Bench decision in Fell v. Gregory ILR 52 Cal 828 (1925). 22. Under Article 181 the terminus a quo is "when the right to apply accrues." Mr. Chakravarty argues that this expression has been construed in reference to other cases coining within the article, to mean, "when the right to apply first accrues." Reliance is placed on the decision in Hari Mohan Dalai v. Parameswar Shau ILR 56 Cal. 61 (1928). The landlord Appellant Hari Mohan Dalai had obtained a decree for rent against the tenants Respondents in the trial Court. 61 (1928). The landlord Appellant Hari Mohan Dalai had obtained a decree for rent against the tenants Respondents in the trial Court. The latter preferred an appeal to the Court of the District Judge who, on the 14th August, 1920, modified the decree of the trial Court by reducing the amount decreed. Meanwhile the Appellant had recovered the amount decreed by the trial Court. A second appeal was taken by the Appellant to this ("curt, which was dismissed on the 8th August, 1923. In May, 1924, the Respondent applied to the trial Court for refund of the excess amount realised by the Appellant. The Appellant contended that the application was barred by limitation. It was not finally disputed that Article 181 of the Limitation Act applied to the case. The parties differed on the question whether time ran from the decree of the District Judge or from that of the High Court which was one of affirmance. This turned on the meaning of the words "when the right to apply accrues." The Courts below held that the time began to run from the date of the decree of the High Court. The landlord appealed to this Court. The appeal was heard by a Division Bench (Suhrawardy, J. and Graham, J.) Suhrawardy, J., held that time ran from the decree of the trial Court. Graham, J., differed and held that time ran from the decree of the High Court, i.e., Final Court of Appeal on the ground thus stated by his Lordship: "It seems to me, moreover, to be reasonable to hold that in such a case limitation is saved on the ground that the relief granted is imperilled by the appeal." On account of this difference of opinion, the case was heard by a Bench consisting of Rankin, C. J., C.C., Ghose, J. and Buck land, J. The Special Bench agreed with Suhrawardy, J. and dissented from the view of Graham, J. and of Mookerjee and Beachcroft, JJ., in Atul Chandra Sinha v. Kunja Behari Sinha 27 C.L.J. 451 (1917). The judgment was delivered by Rankin, C.J., C.C. Ghose, J. and Buckland, J., concurring. The learned Chief Justice thought that the decision in Atul's case 27 C.L.J. 451 (1917) was based on the ground of due diligence and hardship. His Lordships rejected the ground of hardship as having no bearing in interpreting the statute of limitation. The judgment was delivered by Rankin, C.J., C.C. Ghose, J. and Buckland, J., concurring. The learned Chief Justice thought that the decision in Atul's case 27 C.L.J. 451 (1917) was based on the ground of due diligence and hardship. His Lordships rejected the ground of hardship as having no bearing in interpreting the statute of limitation. The ground of due diligence was met by observing that the tenants were in no way bound to leave the money in the hands of landlord to meet against possible eventuality. The doctrine of merger of the decree of the lower Court in that of the Appellate Court enunciated in the judgment of Mitter, J., in Ram Charan Bysack v. Lakshi Kant a Banik 7 ILR 704 (F.B.) (1871) was animadverted upon, and was said to be limited to certain cases only and to be inapplicable to the case before the Court. The theory of suspension of limitation which was negative by Suhrawardy, J., was approved. His Lordship observed that the terminus a quo dated from the first accrual of the right and this accrual must be taken to have accrued at the date of; the decision of the lower Court and not of the first Appellate Court. 23. The decision, in so far as it governs cases of restitution, has been implicitly followed by this Court in the case of Krishna bandhu Ghatak v. Panchkari Saha ILR 58 Cal. 741 (1930), Saroj Bhusan Ghosh v. Debendranath Ghose ILR 59 Cal. 337 (1931), Gopal Laskar Vs. Harihar Mukherjee and Others, AIR 1948 Cal 37 as also by a Full Bench of the Allahabad High Court in Parmeshar Singh v. Sitaldin Dube ILR 57 All. 26 F.B. (1934). 24. None of the decisions of this Court is a decision of a Full Bench and under the rules of this Court, cannot override the decision in Atul's case 27 C.L.J. 451 (1917). The last case still survives the onslaughts made on it. In our opinion, the real basis of that decision, viz., the principle that the law will not compel a person to do a futile thing and to pursue an uncertain path of litigation which may ultimately turn out to be useless, e.g., where the basis of the right to apply was subjudice and was being seriously controverter in appeal, was not really considered by Rankin, C.J., in Hari mohan Dalal's case ILR 56 Cal. 61 (1928). On the other hand, this principle has been applied by their Lordships of the Judicial Committee of the Privy Council in various cases to which we shall presently refer. Suffice it to say, that Hari Mohan Dalals case ILR 56 Cal. 61 (1928) and the cases following it do not directly apply to the facts of the present case and do not stand in the way of our giving our own decision in the special facts of the present case. In fact, Rankin, C.J., was fully alive to this aspect of the case, as would appear from his Lordship's following observations in Hari Mohan Dalal's case ILR 56 Cal. 61 (1928). In Art. 181 the Legislature makes provision not for one definite type of cases but for an unknown number of cases of all kinds. The provision which it makes is specific as regards the period of limitation but as regards the terminus a quo it is content to state in general language ********* it is necessary in applying it to see whether the nature of the case requires that the decree which has been affirmed on appeal should be disregarded in arriving at the date at which the right in the applicant first accrued. 25. We respectfully agree with the above observations subject only to the qualification that the first accrual of the right to apply must be definitive and absolute. 26. Thus where, as in the present case, the very basis of the accrual of the right is itself in litigation in an Appellate Court, the statute should not be so unreasonably construed as to compel a person to act when his action may become infructuous as a final result of the litigation. In such a case, the person entitled to the right, has the option but not the duty to exercise the right till the question on which the right accrued is finally adjudicated upon. 27. The above view proceeds on a principle which has been acted upon by the Judicial Committee of the Privy Council in several cases. 28. Thus in Baijnath Sahai v. Ramgut Singh L.R. 23 IndAp 45 s.c. ILR 23 Cal. 27. The above view proceeds on a principle which has been acted upon by the Judicial Committee of the Privy Council in several cases. 28. Thus in Baijnath Sahai v. Ramgut Singh L.R. 23 IndAp 45 s.c. ILR 23 Cal. (1896) in dealing with a question of limitation for a suit to set aside a revenue sale where the terminus a quo under the relevant article of the Limitation Act was "when the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought" Lord Davey at p. 52 stated the principle as follows:-- Their Lordships are of opinion that there was no final, conclusive and definitive order confirming the sale while the question whether the sale should be confirmed was in litigation * * * 29. In the case of Saiyid Jowad Hossain v. Gendan Singh L.R. 53 I.A. 197: s.c. 31 C.W.N. 58 (1926), where an appeal against a preliminary decree was under appeal, the right to apply for a final decree under Or. 34, r. 5 (2) was held to run, under Article 181 of the Limitation Act from the decree of the Appellate Court. Again in the case of Nagendra Nath De v. Suresh Chandra De L.R. 59 I.A. 283: s.c. 36 C.W.N. 803 (1932) which turned on the meaning of the words "where there has been appeal" occurring in Article 182 of the Limitation Act, it was observed as follows :-- It is at least an intelligible rule that so long as there is any question subjudice 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. 30. These principles apply pro propno vigore to the present case. The title of the deity was in dispute in the appeals filed both by the mortgagor and mortgagee if these had succeeded, the right to apply for a personal decree would have ceased and would have been postponed to a much later date, viz., when the sale of the mortgaged properties had become absolute; and the proceedings, if any, taken by the mortgagee decree-holder in the meantime would have become infructuous. In our opinion, grounds of expediency and convenience also support the view that the right to apply would accrue when the appeal in the deity's suit was disposed of. 31. The above principles were also applied by the Privy Council in the case of, Chan-dramani Saha v. Anarjan Bibi L.R. 61 I.A. 248: s.c. 38 C.W.N. 901 (1934) where the expression "when the sale becomes absolute" occurring in the 3rd column of Article 180 fell to be interpreted. In that case an application for setting aside the sale was dismissed by the trial Court and an order was made confirming the sale. An appeal taken by the judgment-debtor was dismissed. This Court held that time would run from the decision of the trial Court and not from that of the Appellate Court and that the application for delivery of possession which was beyond three years from the date of the decision of the trial Court but within three years of the decision of the Appellate Court, was barred. This decision was reversed by the Privy Council on the ground that the sale did not become absolute until the disposal of the appeal. 32. The decision in Joscurn Boid v. Pirthichand Lal Choudhury L.R. 46 I.A. 52 (1918) on which Mr. Chakravarti relied, is distinguishable. In that case, the purchaser at a rent sale which was subsequently set aside sued the landlord for recovery of money paid as rent to the landlord, on the ground that the consideration had failed on the setting aside of the sale. The suit was filed on the 14th September. 1908, the sale had been set aside by the trial Court on the 24th August, 1905; and the decision had been confirmed on appeal on the 3rd August, 1906. Their Lordships agreed with the view, taken by the Courts below that under Article 97 of the Limitation Act, failure of the consideration occurred at the date of the first Court's decree and observed as follows:-- Their Lordships feel no doubt, that as between these two decrees this is the correct view, for whatever may be the theory under other systems of law, under the Indian law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted when the decree on appeal is one of dismissal. 33. 33. In this case, limitation ran from the date of failure of consideration which undoubtedly took place at the date of the decree of the trial Court; there could not be another failure at the date of the decree of the Appellate Court when it affirmed the decree of the trial Court. 34. A reference to the relevant provisions of the Transfer of Property Act would also support the view that time should run from the date of' the appellate decree. 35. Sec. 65 (b) of the Transfer of Property Act raises an implied covenant on the part of the mortgagor to defend his title and if he does not, sec. 72 (c) gives an option to the mortgagee to spend such money as may he necessary to support the mortgagor's title and to add such money to the principal money. If the mortgagee is held hound to apply for a personal decree within three years from the date of the decree of the trial Court, he would not be able to add to his principal money the costs incurred by him in defending the mortgagor's title by tiling an appeal against an adverse decree of the trial Court if the appeal is not disposed of within three years. 36. In the case of Jagrup Singh v. Mt. Horn-gati AIR [1937] All. 285. Sulaiman, C.J. and Bennet, J., held that time runs from the appellate order confirming the sale on the ground that " so long as there is not absolute finality, it should not he held that it has been definitely ascertained that the amount realised is insufficient to pay the decretal amount." 37. We are not unmindful of the observations in Krishnabandhu Ghatak v. Panch-Kari Saha ILR 58 Cal. 741 (1930) to the effect "once the right accrues, 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." 38. In that case, the sale was confirmed on the 28th June, 1925. and the application under Or. 34. r. 6 was made on the 26th May. 1926. The effect of the pendency of an appeal was not under consideration; the general observation quoted above were obiter. 39. Mr. In that case, the sale was confirmed on the 28th June, 1925. and the application under Or. 34. r. 6 was made on the 26th May. 1926. The effect of the pendency of an appeal was not under consideration; the general observation quoted above were obiter. 39. Mr. Chakravarty relied on the decision in Sona Debi v. Bholaprosad Sahi AIR [1947] Pat. 225. In that case, two mortgagees (viz., Sona Debi the Appellant and the Singhs) had brought two suits on their respective mortgages. The two suits were tried together, a question of priority between the two mortgagees being in issue, and were decided on the 6th February, 1935, The Appellant Sona Debi tiled an appeal which was withdrawn on the 22nd January. 1936. The appeal filed by the Singhs was dismissed on the 16th January. 1939. On the 9th April, 1940, the Appellant, Sona Debi made an application for making the preliminary decree in her suit final. The learned Subordinate Judge held that the time ran from the 22nd January. 1936, and that the application was barred by limitation. The High Court (Monoharlal, J. and Imam, J.) affirmed the decision. 40. Mr. Chakravarty relies on the observations at pp. 229-230 to the effect that the right to apply accrued on the 22nd January, 1936, and was not suspended by reason of the pendency of the appeal by the Singhs. 41. The decision is not opposed to the view we are taking. At p. 229. Monohar Lal, J., first says that the words "right to apply " have been used loosely in Article 181 of the Indian Limitation Act and should be liberally and not rigidly construed, and then observes that "there was no obstacle in their way; no injunction had been issued; no stay order had been given by the High Court and that there was no decision arrived at in any collateral proceeding preventing them from making the application." 42. In the present case there was a collateral proceeding, e.g. the deity's suit which prevented the making of an application under Or. 34, r. 6 of the Code. The question is whether a litigant could wait till a final decision was reached in the collateral proceeding and a liberal view would answer the question in the affirmative. 43. In the present case there was a collateral proceeding, e.g. the deity's suit which prevented the making of an application under Or. 34, r. 6 of the Code. The question is whether a litigant could wait till a final decision was reached in the collateral proceeding and a liberal view would answer the question in the affirmative. 43. The observations of Sir Ashutosh Mookerjee, J., in Dwijendra Narayan Roy v. Jogesh Chandra De 39 C.L.J. 40 (55) (1923) to the effect that 44. "Consequently, the true test to determine when a cause of action has accrued is to ascertain when Plaintiff could first have maintained his action to a successful result " do not militate against the views contended for by Mr. Gupta. Till the uncertainty of litigation in the deity's suit was finally decided, it was impossible to predict the fate of an application under Or. 34. r. 6, Civil Procedure Code, if it was riled before the decision of the Appellate Court. 45. Mr. Chakravarty also drew our attention to the decision in Harish Chandra Choudhury v. Dinesh Chandra Choudhury 50 C.W.N. 667 (1946), where the words "final decree or order of the Appellate Court, where there has been an appeal" occurring in Article 182 (2) of the Indian Limitation Act were construed not to include an appellate order refusing an application to set aside an exparte decree. The decision turned on the meaning of the particular words used and has no material bearing on the question before us. 46. Mr. Chakravarty also relied on the decision of Rashid, J., in AIR 1938 695 (Lahore) . The facts were entirely different, the question being whether limitation was suspended by reason of an appeal in a suit to which the executing decree-holder was no party. 47. Mr. Chakravarty also referred to an observation of Seshagiri Iyer, one of the referring Judges in Muthu Korakkai. Chetiy v. Madar Ammual ILR 43 Mad. 185 at p. 193 (1919) to the effect that once time has begun to run, the subsequent inability consequent on the application to set aside the sale cannot stop the running of limitation. These observations have no force after the decision of the Privy Council in Chandra Moni Saha's case L.R. 61 I.A. 248: S.c. 38 C.W.N. 901 (1934). 48. 185 at p. 193 (1919) to the effect that once time has begun to run, the subsequent inability consequent on the application to set aside the sale cannot stop the running of limitation. These observations have no force after the decision of the Privy Council in Chandra Moni Saha's case L.R. 61 I.A. 248: S.c. 38 C.W.N. 901 (1934). 48. The above discussion leads us to hold that the right to apply did not accrue in the present case till the decision of the appeals, i.e. 20th June. 1941, and the present application which was filed on the 12th January, 1942. within three years of the decision on appeal is in time. 49. The second contention raised by the Appellant also fails. 50. The above conclusions are sufficient for the determination of the appeal but there is another aspect of the case which seems to us to call for notice. 51. Where, as in the present case, the mortgagor is found to have no title and the preliminary and final decree for sale become ineffective, a sale in execution becomes futile. In such cases, it would be doing violence to language to say that the net proceeds of sale are found insufficient. Textually. Or. 34. r. 6, of the Code does not apply to such a case. All the same the cause of action for the mortgage suit on account of non-payment of the loan, remains undischarged, the preliminary and final decree having been rendered inoperative. In such a contingency, the Plaintiff mortgagee can ask the Court to proceed to try the cause of action to take notice of events which have occurred subsequent to the suit and to give relief to the Plaintiff on the terms of sec. 68 of the Transfer of Property Act and to puss a personal decree for the sum claimed in the suit. Neither Or, 34, r. 6 nor Or. 34. r. 14 of the CPC would present any difficulty, the mortgaged properties being unavailable. If this is the true view of the rights of the parties no question of limitation arises; as the application for passing a personal decree in the altered circumstances is an application in a pending suit. 52. This aspect of the case receives some support from the case of Bisheswar Nath v. Chandu Lal ILR 50 All. If this is the true view of the rights of the parties no question of limitation arises; as the application for passing a personal decree in the altered circumstances is an application in a pending suit. 52. This aspect of the case receives some support from the case of Bisheswar Nath v. Chandu Lal ILR 50 All. 321 (1927) where Boys and Kandal, JJ., held that where the whole of the property has ceased to be available for sale owing to the fault of the mortgagee the mortgagee is entitled to a personal decree though not under Or. 34, r. 6 on the basis of a legal fiction of a sale. 53. The above view is also supported by the decision of Patanjali Sastri, J., and Bell, J., in the case of Kamakha Aumal v. Anantha Narayan Swami Pillai (33). The order made by the Court below directing the passing of a personal decree is therefore correct. 54. This appeal accordingly fails and must be dismissed with costs, hearing fee being assessed at 10 gold mohurs. Mookerjee, J. I agree.