Kidwai, J.:— On August 1, 1928 some trees standing on a plot of land, described as a Tank, and a house with trees, were mortgaged to Makhdoom to secure the repayment of a loan of Rs. 175. The mortgagee sued to enforce his mortgage and obtained a preliminary decree on October 24, 1934. This decree directed that unless the entire sum due under the mortgage was paid by April 24, 1935, the mortgaged property (which is fully described in the Schedule) or a sufficient portion of it be sold. It further provided:—

(3) That if the net proceeds of the sale are insufficient to pay such amount and such subsequent interest and costs in full, the plaintiff shall be at liberty to apply for a personal decree for the amount of the Balance.

2. This decree was made final on March 6, 1938 and the first application for execution was made by the decree-holder on December 10, 1940. On January 21, 1941 this application was consigned to the records. A second application for execution was made on March 11, 1943. An objection was then taken on April 16, 1943 by the judgment-debtors that they were agriculturists and that accordingly the decree should be amended by reducing interest. This application was allowed and the decretal amount was reduced to Rs. 175. Thereafter the execution application was consigned to the records. On September 15, 1944 a third application was made for execution of the decree. On May 5, 1944 the judgment-debtors objected that they were agriculturists and that by reason of the provisions of the U.P Debt Redemption Act, the trees, which are scattered trees and not a grove, could not be sold and the house could not be sold because it was the residential house of an agriculturist used for agricultural purposes.

3. The Court, after hearing arguments, allowed these objections. It held that Section 22 of the Debt Redemption Act prohibited the sale of scattered trees and that Section 60, C.P.C prohibited the sale of the house which was admittedly the residential house of an agriculturist.

4. The decree-holder submitted to this order and applied on July 14, 1944 for a personal decree under Order XXXIV, R. 6, C.P.C There were some defects in this application and since they were not removed by the applicant, who absented himself, the application was dismissed on August 14, 1944.

5. On October 12, 1944 a second application was made under Order XXXIV, Rule 6, C.P.C Office reported that this application was defective and it pointed out the defects, including the failure of the applicants to file a copy of the decree. Eventually on February 13, 1945 a report was submitted that the applicant had not till then turned up to correct the mistakes.

6. On February 23, 1945 the decree-holder applied that he did not desire to proceed with the application and prayed that it might be returned to him for correction. It seems that the Court overlooked this application and ordered on March 2, 1945, “no personal decree can be granted, Rejected”. Thereafter on March 15, 1945 it passed an order on the application for the withdrawal that the decree-holder should be informed that his application for a personal decree had already been dismissed.

7. On September 12, 1945 the decree-holder filed a third application under Order XXXIV, Rule 6 of the Code of Civil Procedure. It was pointed out that, on an objection by the judgment-debtor, it had been held that the trees were not saleable by reason of Section 22 of Act XIII of 1940 and that the house could not be sold by reason of Section 60 of the Code of Civil Procedure, that there was no other mortgaged property and that the judgment-debtor had a considerable amount of other property. It was accordingly prayed that a personal decree be passed.

8. While this application was still pending, the decree-holder made an application under Section 151 of the Code of Civil Procedure in which he stated all the facts and prayed that, even if Order XXXIV, Rule 6 of the Code of Civil Procedure was inapplicable a personal decree be granted. After the filing of this application, the application under Order XXXIV, Rule 6 of the Code of Civil Procedure seems not to have been pursued further and it was allowed to remain without orders.

9. The learned Munsif hled that since the decree-holder had not appealed against the order of March 2, 1945 on his application under Order XXXIV, Rule 6 of the Code of Civil Procedure and allowed an appeal to become time-barred, he could not be allowed to avail himself of Section 151 of the Code of Civil Procedure.

10. The decree-holder came up in revision under Section 115 of the Code of Civil Procedure. Since there was some conflict of opinion between two decisions of the erstwhile Allahabad High Court as to the power of the Court to pass a personal decree in a case such as this, the application has been referred to this Full Bench for disposal.

11. On behalf of the applicant it was contended that the learned Munsif has erred in holding that the proper remedy of the applicant was to go up in appeal from the order dismissing his application under Order XXXIV, Rule 6 of the Code of Civil Procedure since that rule is inapplicable and the appeal would not have led to any result; consequently the only course open to the applicant was to apply under Section 151 of the Code of Civil Procedure for the exercise of the inherent powers of the Court to give relief.

12. On the other hand, Mr. Bajpai contended that, although two Full Bench decisions of the Chief Court of Oudh have taken the view that Order XXXIV, Rule 6 of the Code of Civil Procedure does not apply to cases in which there has been no sale at all, yet other High Courts have taken the view that this rule applies even to cases where the mortgaged property has been destroyed or is otherwise not available. His argument proceeded that, since the rule is applicable and the application under it was dismissed, the order of dismissal became final and consequently, even if an application lies under Section 151 of the Code of Civil Procedure, the lower Court exercised its discretion properly in refusing to pass any decree under Rule 6. He has further contended that no application under Section 151 in fact lies.

13. An application under Order XXXIV of the Code of Civil Procedure is not an application in execution but an application for the passing of a decree. If it is refused the order passed is as much a decree and appealable as such, as an order granting a personal decree— vide L. Madho Lal v. L. Duli Chand.1 This being so, Section 11 of the Code of Civil Procedure would bar a second application for a final decree if the first application is dismissed.

14. In the present case the first application was defective and was dismissed for that reason. It was, therefore, not a properly presented application and it was rejected without any decision. The second application also had some defects but the Court considered it on its merits in spite of these defects and held that no personal decree could be granted. It, therefore, rejected the application. This order of rejection amounted to a decree and the only way to correct it was by way of appeal.

15. It is true that Section 151 of the Code of Civil Procedure was not relied upon as providing a ground for relief in the case but that does not prevent the application of Section 11 of the Code of Civil Procedure since by reason of Explanation IV of that section the bar of res judicata would apply even in respect of such matters as might and ought to have been made a ground of defence or attack. In the present case the powers of the court under Section 151 of the Code of Civil Procedure, if it has any powers in a case such as the present, might and ought to have been invoked in claiming a personal decree. Section 11 of the Code of Civil Procedure would, therefore, bar the present application.

16. No doubt the decree-holder himself applied that he did not wish to proceed with his application for a personal decree and prayed that might be returned. Even had the application been dismissed as withdrawn, it would not make any difference to the application of Section 11 of the Code of Civil Procedure. Moreover, as a fact, this application was dismissed, it may be wrongly, on the merits and the proper method of getting this order corrected was by filing an appeal.

17. This is sufficient for a dismissal of the present application, but the question of the maintainability of an application under Section 151 of the Code of Civil Procedure was fully argued before us and this was the point upon which the matter was referred to a Full Bench. I, therefore, proceed to express my opinion on this question also.

18. Section 151 of the Code of Civil Procedure gives extraordinary powers to a Court in order to prevent an abuse of the process of the Court: it does not justify an order in violation of the law. The first thing, therefore, that has to be considered is whether there is anything against the law in granting a personal decree when no sale has taken place.

19. In Sahu Bisheshwar Nath v. Chandu Lal A.I.R 1928 All. 71. a Bench of the Allahabad High Court held that it would be doing violence to the language of Order XXXIV, Rule 6 of the Code of Civil Procedure, to hold that it could apply where there had been no sale at all of any portion of the mortgaged property. Boys, J. then proceeded to say:

The mortgagee can get a decree for sale and though it is of no immediate use to him, no harm is done if that decree is combined with conditional decree under Order 4, Rule 6—Jeuna Bahu v. Parmeshwar (A.I.R 1918 P.C 159) — but he cannot get at the same time as his decree for sale an unrestricted personal decree. It may be noted that there is apparently no statutory basis for refusing the immediate grant of an unrestricted personal decree, but the Courts have evolved and declared this rule, for it would clearly be absurd to give the mortgagor the time allowed for payment under a decree for sale and at the same time allow the mortgagee to proceed instanter under a personal decree. What then happens to the mortgagee's right to an unrestricted personal decree if he has it at the date of suit, but cannot be allowed to take it at the same time as his decree for sale?

It has always been understood and conceded that the right to a personal decree is not wholly destroyed for a right to a personal decree, at least under certain conditions, is merely suspended until those conditions are fulfilled, as is clearly indicated by Order 34, Rule 6. This is manifest and beyond dispute. What reason is there for holding that the rule which we have quoted keeps in suspension only so much of the right to a personal decree as can, in the necessary conditions, be later exercised under Order 34, Rule 6 and destroys the remainder of the right? In our view there is none. As it appears to us, the rule does not arbitrarily destroy any part of the right to a personal decree; the whole right remains, the rule merely suspends the whole right during and because of the existence of the remedy against the mortgaged property; and it follows that as soon as chat remedy has been exhausted, or, without any blame attaching to the decree-holder has ceased to exist or is discovered to have never existed the obstacle to the granting of a personal decree is removed and the mortgagee is free to claim his whole right to an immediate personal decree and he can exercise it by an application in the suit for personal decree.

20. Thus, according to this view, in such cases the right to obtain a personal decree is merely in suspense.

21. This view has been expressly dissented from by another Bench of the same Court in Lala Ram Saran Das v. Lala Banwari Lal.3 In his judgment in that case Niamatullah, J. says:

That a Court can pass a simple money decree, wholly apart from the provisions of Order 34, Rule 6, Civil Procedure Code, is a view which found favour with the learned Judges who decided 50 All. 321 (Bisheshwar Nath v. Chandu Lal). This Court has however repeatedly held that a simple money decree under Order 34, Rule 6 of Civil Procedure can bypassed when and if the sale has taken place and the sale proceeds have proved insufficient for the satisfaction of the mortgage money. Order 34, Rule 6 empowers a Court to pass a simple money decree in a suit which has been previously concluded by a final decree. There is no other rule of law under which such a simple money decree can be passed. With great respect we point out chat a Court cannot pass a decree on equitable grounds which the law does not expressly empower it to pass. Where a specific provision has been made by law prescribing the conditions in which a decree can be passed, the Court can act only within the limits laid down by such law. It is not justified in enlarging its powers by an appeal to equitable considerations. This Court has held in several cases that a simple money decree cannot be passed, unless the contingency contemplated by Order 34, Rule 6 has occured; for instance 9 A.L.J 569 (Behari Lal v. Bisheshwar Dayal) observations in the Full Bench case in 1929 A.L.J 1294 (Radha Krishna v. Tej Saroop); 42 All. 519, Darbari Mal v. Mula Singh; and 1932 A.L.J 311 (Babu Lal v. Raghunandan). If a simple money decree can be passed wholly apart from Order 34, Rule 6, Code of Civil Procedure, its provisions are rendered absolutely nugatory. If we accept the correctness of the View taken in 50 All. 321, we feel that we will have to disregard the view taken in the cases noted above, in which the right of a mortgagee to obtain a simple money decree, without an attempt to sell the mortgaged property, was negatived. We think, therefore, that we are justified in not considering 50 All. 321 as good law.

22. I respectfully agree with the reasoning of the learned Judges in the above case.

23. In Ganeshwar Parida v. Harish Chandra Dutta A.I.R 1940 Pat. 616. the earlier Allahabad decision was preferred to the later one and in Roshan Din v. Thakur Das A.I.R 1935 Lah. 536. the same view of the law was taken but in neither of these two cases was the reasoning such as to detract from the argument in Lal Ram Saran Das v. Lala Banwari Lal.6

24. The right of a person who has lent money to another to realise the debt is not an absolute right but is governed by the terms of the contract between them and by the law laid down for the enforcement of the debt, e.g, the law of limitation and the other laws of procedure. In the present case the loan was advanced on a mortgage by which certain property was hypothecated and it was provided that if that property was found insufficient for the realisation of the whole debt, the money lent could be realised from the person and ocher property of the debtor. The procedure laid down by the law for the enforcement of such a contract as this is that prescribed by Order XXXIV of the Code of Civil Procedure and in fact that procedure was followed. According to that procedure, a personal decree can only be passed if the net proceeds of any sale held under Rue 5 of the order are insufficient to pay the amount due to the plaintiff.

25. In the present case the preliminary decree itself lays down the same condition in the words which I have quoted at the commencement of this judgment, so that, apart from the provisions of Order XXXIV, R. 6 of the Code of Civil Procedure, the decree by which the relations of the parties are now governed stipulate for some sale of the mortgage property before a personal decree can be passed.

26. It is admitted by the applicant's learned Advocate that no sale has taken place and that consequently this condition has not been fulfilled so chat Order XXXIV, Rule 6, Code of Civil Procedure does not justify the grant of a personal decree. He has to make this admission otherwise Order XXXIV, Rule 6 of the Code of Civil Procedure would be applicable and the Court having refused to pass a decree under that rule, a second application would be directly barred by Section 11 of the Code of Civil Procedure. In any case, however, I see no reason to doubt the correctness of the decision in the Full Bench cases of Shyam Behari v. Mst. Mohandei A.I.R 1930 Oudh 377. and B. Mahadeo Prasad Pal Singh v. B. Jai Karan Singh A.I.R 1933 Oudh 1. which are in accordance with the whole trend of decisions of the erstwhile Allahabad High Court as stated in Lala Ram Saran Das v. Lala Banwari Lal A.I.R 1938 All. 98. and as conceded in Sahu Bisheshwar Nath v. Chandu Lal A.I.R 1928 All. 71. itself.

27. Thus to grant a personal decree in a case such as this would be to defeat not only the express provisions of Order XXXIV, Rule 6 of the Code of Civil Procedure but of the decree itself, and Section 151 of the Code of Civil Procedure cannot be utilised in such a manner.

28. With all respect to the learned Judges who decided the case of Sahu Bisheshwar Nath v. Chandu Lal A.I.R 1928 All. 71. it must be pointed out that, in the case of a mortgage, the mortgagee has no absolute right to obtain a decree for the mortgage money. Section 68 of the Transfer of Property Act provides:

(1) The mortgagee has a right to sue for the mortgage money in the following cases and no others namely:

(a) where the mortgagor binds himself to repay the same;

(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of Section 66, and the mortgage has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;

(d) where the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor.

Provided that, in the case referred to in Clause (a) a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage money.

(2) Where a suit is brought under Clause (a) or Clause (b) of Sub-section (1) the Court may, at its discretion, stay the suit and all the proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security, and, if necessary, re-transfers the mortgaged property.

29. This section restricts the right of the mortgagee to obtain a decree for money very greatly. In the present case the conditions laid down in any clause other than Clause 1(a) do not exist. As to the conditions in Clause 1(a) the mortgagor undertook a personal responsibility to repay the loan only if the mortgaged property was found insufficient for the purpose. The decree of the Court interpreted this as indicating that the property should be found on a sale taking place to be insufficient. Thus this condition too does not exist.

30. Further Sub-section (2) of Section 68 makes clear that the remedy granted by this section is by way of suit even when proceedings are still going on for the realisation of the mortgage debt out of the proceeds of the ??? property. This indicates that if the situation contemplated by Section 68 of the Transfer of Property Act has arisen, it is not by means of a proceeding under Section 151 of the Code of Civil Procedure in the suit on the mortgage that the remedy can be claimed but by means of a separate suit. I have come to the conclusion, therefore, that no application lies under Section 151, C.P.C for the grant of a personal decree on the basis of a mortgage and that a personal decree can only be granted if the conditions laid down in Order XXXIV, Rule 6, C.P.C are satisfied. For this reason too the application must fail and I would dismiss it with costs.

31. Ghulam Hasan, J.:— I agree.

32. Chandiramani, J.:— I agree.

33. Application dismissed.