Ahmad, J.:— In this case the rule has been issued at the instances of the judgment-debtor and is directed against the order dated the 20th April, 1955, passed in Miscellaneous Case No. 16 of 1955 arising out of Execution Case No. 19 of 1954, whereby the Court of execution has reviewed its own order passed therein on 23rd December, 1954, and has finally held that a personal decree against the judgment-debtor had already been passed at the time of the passing of the mortgage decree under execution, and, therefore, it was not necessary for the decree-holders to obtain a fresh decree under O. 34, R. 6 of the CPC for proceeding in execution against any of the non-hypothecated properties of the judgment-debtor and as such the execution levied in the present case against the non-hypothecated properties of the judgment-debtor was maintainable in law.

2. The important facts leading to the proceeding in execution and to the orders passed on 23rd December, 1954, and 20th April, 1955, are as follows. The judgment-debtor petitioner before us executed a mortgage in favour of the decree-holders opposite party on 10th July, 1937, and thereunder he hypothecated 10 annas and 8 pies share of his touzi No. 11912 lying in the District of Patna, Subsequently in the title suit No. 84 of 1943 arising out of this mortgage a preliminary mortgage decree was passed on 29th July 1946 and then a Anal decree on 30th July, 1947.

3. Thereafter on 27th June, 1953 before any step had been taken for execution of that mortgage decree, the property under mortgage, namely, 10 annas and 8 pies of the zamindari in tauzi No. 11912 vested in the State of Bihar under the provisions of the Land Reforms Act, 1950. In those circumstances the decree-holders on the vesting of the mortgage property in the State applied for the transfer of the decree to the Court at Gaya and on obtaining certificate of non-satisfaction put it into execution against some non-hypothecated properties in the Court of the 1st Subordinate Judge of that place in Execution Case No. 19 of 1954. Therein the judgment-debtor filed an objection which was numbered as Miscellaneous Case No. 96 of 1954. The main plea raised was that the execution could in no case at that stage proceed against any of the non-hypothecated properties of the judgment-debtor for no personal decree under O. 34, R. 6 of the CPC, had so far been passed against him. This Miscellaneous case, as it appears from the order, was taken up ex parte and decided in favour of the judgment-debtor on 23rd December, 1954.

4. The allegation of the decree-holders is that this order was passed behind their back and when they came to know of it they filed an application for the review of that order. That was numbered as Miscellaneous Case No. 16 of 1955 and it was in that miscellaneous case that the order under revision was passed. According to this order, it has been held that the personal decree had already been passed against the judgment-debtor along with the mortgage decree and though by oversight the important clause in the judgment relating to the personal decree wan not incorporated in the decree under execution, it was open to the executing Court to read the decree in the light of the judgment and then to allow the decree-holder to enforce the personal liability, as provided in the judgment by taking execution against the non-hypothecated properties of the judgment-debtor.

5. Mr. Lal Narayan Sinha appearing for the judgment-debtor petitioner has raised mainly two contentions (1) that the order is wrong on marit and (2) that no review lay against the order passed on 23rd December, 1954.

6. In support of the first contention twofold arguments have been advanced the first on the footing of the provisions of law laid down in O. 34, R. 6 of the CPC and the other on the footing of the provisions of law laid down in Section 4(d) of the Bihar Land Reforms Act. The law laid down in O. 34, R. 6 of the CPC deals with the personal liability of a mortgagor under a mortgage decree. Its object is to obviate the necessity of a fresh suit to recover the balance, even if the mortgagee has reserved his right to do so with the leave of the Court under O. 2, R. 2 of the CPC.

7. And it cannot be gainsaid that such a claim for personal decree against the mortgagor may be enforced only if there is a covenant to that effect in the mortgage deed. In India a mortgage does not necessarily import a personal obligation to repay, though it is true that prima facie every simple mortgage and every English mortgage involves a personal obligation to pay in the same sense as prima facie there is no personal obligation to pay a usufructuary mortgage or a mortgage by conditional sale.

8. Thus a personal liability to pay the mortgage amount is in each case a question of construction of the mortgage instrument Markandeya Sasri v. Subhanadharacharyulu, AIR 1918 Mad 530 (A); Askaran v. Gobardhan, AIR 1922 Cal 52 (B); Tiruvadi Aiyengar v. Muthammal Janki, AIR 1916 Mad 13 (C); Pars Ram v. Brij Mohan, AIR 1932 Lah 164 (D) and Beni Madho v. Janki Pandey, AIR 1937 Pat 261 (E). It, therefore, necessarily follows that the powers of the Court to make up any deficiency in the realisation of the mortgage amount on the sale of the properties hypothecated under a mortgage deed from the person of the mortgagor himself do not depend on the provisions given in O. 34, R. 6 of the CPC, nor are they derived from the clause in the decree reserving leave to the plaintiff to apply for a personal judgment.

9. In the present case it is not only that the mortgage giving rise to the mortgage decree under execution was a simple mortgage but also that it is not denied that therein there was a specific provision for personal liability as well. Therefore, the money advanced under that mortgage could be realised both from the sale of the property hypothecated as also from the person of the mortgagor in case the sale proceeds were to be found insufficient to satisfy the entire mortgage amount. That being so, the only question that on the facts of this case arises for consideration is as to whether the decree-holders in enforcing the personal liability against the mortgagor have proceeded in accordance with law.

10. Now there is no controversy nor there is any scope for it that the relevant provision in law for suits relating to mortgages of immovable property is specifically provided in O. 34 of the CPC. That contemplates that such dual liabilities under a mortgage have to be enforced in two stages. In the first stage under Rr. 4 & 5 of that Order, the liability for the sale of the properties hypothecated under the document is to be enforced and then under R. 6 the liability against person. Order 34, R. 6 of the CPC, says:

“Where the not proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.”

11. It visualises the following four elements: (1) That the sale of the properties should have been held. (2) That the proceeds on sale should have been; found insufficient to cover the entire mortgage amount. (3) That the balance is otherwise recoverable in law from the defendant. (4) That the Court then on application is to pass a decree for the balance against the mortgagor personally. The third item contemplates that such a right is provided under the contract and the same is not barred by time on the date when the mortgage suit is instituted.

12. It is thus clear that an application under O. 34, R. 6 of the CPC, is a step in the suit and not in the execution arising out of the decree passed in that suit. This provision corresponds to the old Section 90 of the Transfer of Property Act 1908 with this difference that the word ‘found’ between the words ‘are’ and ‘insufficient’ is new. Therefore, under the old provision, as laid down in the aforesaid Section 90 of the Transfer of Property Act, it was not necessary that a decree for personal liability should have been passed separately only when the not proceeds of the sale were found insufficient to pay the amount due to the mortgagee.

13. In other words, under that section provision could be made in the mortgage decree itself for proceeding against the mortgagor personally as held in Mt. Jeuna Babu v. Parameshwar Narayan, AIR 1918 PC 159 (P); Abdur Razzaq v. Mumtaz Husain ILR 15 All 334 (G); Batak Nath v. Pitambar Das, ILR 13 All 360 (H) and Ram Baran Singh v. Gobind Singh, ILR 28 All 295 (I). Now, however, because of the introduction of the word ‘found’ in between the words ‘are’ and ‘insufficient, the procedure has changed. The section as it now stands, demands that a personal decree under this rule for the balance should not be passed until after the mortgage property has been sold and the proceeds found insufficient to pay the mortgage money; in other words, a personal decree under this rule should now be granted only after the sale under the final decree has been carried out and the deficiency ascertained.

14. Therefore, under the procedural law, as it stands now, this is a relief which will not be granted unless that stage is reached. It accordingly follows that the Court should not while-passing a decree for sale under R. 5 pass a personal decree for the balance and that a personal decree should only be passed when the sale proceeds are found insufficient to satisfy the mortgagee's claim: Mt. Sukra v. Ram Harakh, AIR 1951 All 185 (FB) (J); Lal Behary Singh v. Habibur Rahman, ILR 26 Cal 166 (K); Ram Ranjan Chakravarti v. Indra Narain Dass, ILR 33 Cal 890 (L); Damodar v. Vyanku, ILR 31 Bom 244 (M); Badri Das v. Inayat Khan, ILR 22 All 404 (N); Aiyasamier v. Venkatachela Mudali ILR 40 Mad 989 : (AIR 1918 Mad 1187) (FB) (O); Janardan Shankar v. Krishnaji Balkrishna, 22 Bom LR 953 : (AIR 1920 Bom 95) (P); Gurumukh Singh v. Hari Chand, AIR 1935 Lah 850 (Q); Sundermull v. J.C Galstaun, AIR 1929 Cal 387 (R); Raja Ram Lal v. Hanuman Upadhya, AIR 1916 Pat 350 (S); Profulla Nath v. Asia Khatun, AIR 1934 Cal 426 (T); Palaniappa v. Narayanan, AIR 1936 Mad 34 (TJ); Ram Saran Das v. Banwari Lal, AIR 1938 ATI 98 (V) and Ulfat Hussain Khan v. Girdhari Lal, AIR 1937 Oudh 252 (W).

15. The view gets support also from the form of the decree as provided in form No. XI of Appendix D of the Code of Civil Procedure. That unambiguously indicates that a personal decree is not to be passed until after the sale is held and the balance is ascertained and it is so because the remedy of the mortgagee in the first instance is always against the properties mortgaged and, therefore, such property in the first instance has to be exhausted before a personal liability can be imposed on the mortgagor. Thus, R. 6 of O. 34 provides a clear direction to the Court as to the time and manner in which the personal decree is to be given and the Court, therefore, will be acting irregularly if in contravention of that section it provides in the decree for sale itself that the mortgagee may in case the sale amount is not sufficient to cover the entire mortgage dues proceed against the mortgagor personally for the balance. Chandi Charan Roy Chowdhry v. Ambika Charan Dutt, ILR 31 Cal 792 (X); Kamalamma v. Komandur Narasimha Charlu, ILR 30 Mad 484 (Y); ILR 31 Bom 244 (M) and Keshav Manja Bhat v. Gobind Waga Bhat, AIR 1923 Bom 32 (Z).

16. But then a question arises that however irregular it may be on the part of the Court to pass a personal decree along with the decree for sale in a mortgage suit, what is the effect if such a composite decree in contravention of O. 34, R. 6 of the CPC is in fact passed. Will that irregularity make the decree as to the personal liability a void decree or only a voidable one? In other words, the question is as to whether the law laid down in O. 34, R. 6 is mandatory or directory, and as to whether the strict form laid down under O. 34, R. 6 may at all be departed from. In my opinion, such an irregularity both on principle and authorities cannot to any case make the composite decree void either in that or whole: Kumara Venkata v. Velavuda, AIR 1915 Mad 449 (Z-1); AIR 1918 PC 159 (P): Ralia Ram v. Hira Lal, AIR 1928 Lah 653 (Z-2) and AIR 1934 Cal 426 (T).

17. If that is so then that irregularity can at best result in making the decree as to personal liability only voidable and thus may be waived either expressly or by implication by the mortgagor who is to be adversely affected in case the restrictions imposed under O. 34, R. 6 are not followed against him. It is I think, based on that principle that a consent decree or a decree on an award in a suit on mortgage may provide simultaneously both for the sale of property as also for personal liability in case the sale proceeds are insufficient to satisfy the entire mortgage due; and that in such cases no further decree under R. 6 of O. 34 is necessary Aditya Prasad v. Hargovind Singh, AIR 1928 Oudh 409 (Z-3); Usafali v. Faiaullabhai, AIR 1930 Bom 208 (Z-4); Harihar Prasad v. Gopal Saran, AIR 1935 Pat 385 (Z-5); Mool Chand Rastogi Trust v. Batey Krishna, (S) AIR 1955 All 566 (Z-6) and Sheo Balak Prasad Awasthi v. Jugal Kishore Narain, AIR 1936 Pat 568 (Z-7).

18. And it is obvious that it could not be so if the effect of the contravention of O. 34, R. 6 in such a case were to make the direction as to personal liability void. That being the position, it follows that where at the time of the original decree a decision has been given as to the persona liability of the defendant though wrongly and in contravention of the provision of law as laid down in O. 34, R. 6 and if the same is not objected to, the question cannot be raised again thereafter on general principle of res judicata with the result that it becomes final and not being void can be enforced in law without further resorting to O. 34, R. 6 of the CPC.

19. That means, if a personal decree is actually passed before the sale and the mortgagor does not object to it, he is estopped from questioning the validity of the decree later on. AIR 1936 Pat 568 (Z-7), Kirpa Kishen v. Babu Lal, AIR 1924 All 225 (1) (Z-8): Hans Raj v. Ram Rakhi, AIR 1933 Lah 831 (Z-9); Ala Bakhsh Khuda Baksh v. Durga Baksh Singh, AIR 1933 Oudh 529 (Z-10); Maharaj Ram Bilas v. Sripal Singh, AIR 1935 Oudh 11 (Z-11); Kashif Hussain v. Sashidhar Singh, AIR 1930 Oudh 328 (Z-12); Abbakki v. Krishnavya, ILR 32 Mad 534 (Z-13); Uttam Ishlok Rai v. Ram Narain Rai, ILR 28 All 365 (Z-14). And in that case no fresh supplementary decree under O. 34, R. 6 is necessary before enforcing the personal liability Gagarnath Mahapatra v. Lokenath Sukul, AIR 1921 Pat 49 (Z-15); Sachari Pearl v. Ram Kishori Kuer. AIR 1924 Pat 262 (Z-16); Peariasmi v. Muthia, AIR 1815 Mad 452 (Z-17): Narayana Iyer v. Smgharaveloo Vannian, AIR 1918 Mad 607 (Z-18); Sadfao Singh v. The Maharaia of Banares. ILR 29 All 12 (Z-19); ILR 13 All 360 (H) : ILR 15 All 334 (G); Dina Nath Mitter v. Bejoy Krishna Das, 7 Cal WN 744 (Z-20); Lalla Tirhini Sashi v. Lalla Hurruk Narain, ILR 21 Cal 26 (Z-21); Fala Krista Pal v. Jagannath Marwari, AIR 1932 Cal 775 (Z-22) and AIR 1918 PC 159 (F).

20. In this case it is not denied that no decree under O. 34, R. 6 of the CPC has been so far passed in favour of the decree-holder. What is, however, contended on behalf of the decree-holders is that a decree for personal liability had already been passed in their favour at the very time when the decree for sale was passed in the suit itself. If this claim is correct, then such a decree for personal liability is not void and may be enforced without fresh supplementary decree under O. 34, R. 6 of the CPC as stated above. Mr. Lal Narayan Sinha has, however, challenged the very claim that such a composite decree was ever passed and that on two grounds; (i) that the decree, as it stands, does not show that in fact any composite decree providing both for the sale of the property as also for personal liability against the mortgagor was at all passed and (ii) that as there is no ambiguity on the face of the decree it is no more open to any interpretation on the footing that the judgment passed in the original suit did give a direction for personal liability also.

21. So far as the first contention is concerned, that is mainly based on the finding of the Court itself. It says:

“The decree which is on record does not include the particular clause regarding personal liability but, the judgment contains the following words:

‘For the satisfaction of the decretal amount the mortgaged properties would be charged primarily and if the decretal amount is not fully satisfied from it then defendant No. 1 alone would be personally liable for the satisfaction of the balance if any.”

22. This finding does no doubt show that the decree as it stands read by itself does not disclose that any composite decree was passed in this case. But our attention has been drawn to the discussion in the judgment made on issues 1 and 2 as also to cl. (5) of the preliminary decree. According to the Advocate-General, these passages in the judgment and the decree clearly show that the decree on the face of it is ambiguous and is, therefore, open to interpretation. It appears that this question was raised in the Court below also.

23. In answer the Court there relying on the decisions in Radhamoni Devi v. Gobind Chandra Das, AIR 1942 Pat 196 (Z-23) and Sheo Balak Prasad Awasthi v. Jugal Kishore Narain, 17 Pat LT 540 : (AIR 1936 Pat 568) (Z-24) came to the conclusion that even in cases like the present one it was open to the Court to interprete the decree in the light of the judgment and to enforce the same on the basis of that interpretation. In the former case Chatterji J., observed

“Mr. S. Mahanty on behalf of the respondent contends that the decree as it stands is quite unambiguous and makes both the defendants personally liable. The decree however shows that the claim was ‘for recovery of money incurred on account of maintenance of lunatic Jagadhischandra Das, defendant 2.’ This suggests that the money was payable by defendant 2. On the face of the decree therefore there is some ambiguity. Apart from this, it is always open to a Court executing the decree to interpret it with reference to the judgment. Reading the judgment in the present case, there appears to be no doubt that it was decided that the plaintiff is not entitled to recover his dues by selling the ornaments in question.”

Further the learned Judge held:

“The Court executing the decree is bound by the decision in the original suit. There being a distinct issue on the point in the suit and that issue having been decided against the plaintiff, it is not open to him to obtain by execution what was expressly denied to him by the decision in the original suit.”

24. In the latter case the preliminary decree was in the usual form and there was no mention of any personal liability but it referred to the petition of compromise attached to it where a specific provision had been made that if the sale proceeds were not sufficient other properties of the judgment-debtor would be liable to be sold. In these circumstances a question arose as to whether a supplementary decree under O. 34, K. 6 of the CPC, was still necessary, in answer thereto Khaja Mohammad Noor J., without going into the question of interpretation decided that no further decree under O. 34, R. 6 was needed to be obtained and execution as levied was maintainable.

25. Therefore, that decision cannot be said to throw directly any light on the issue raised here. It, however, cannot be denied that the former, decision reported in AIR 1942 Pat 196 (Z-23) goes a long way to support the view taken by the trial Court. That being so, the contention of Mr. Sinha on this point fails. If that is so, then it has to be held that in this case a composite decree was passed providing both for the sale of the property as also for personal liability against the judgment-debtor, and as no objection was ever taken to it by the judgment-debtor he is now estopped to challenge the same.

26. Further for that very reason, as already stated, it is now not necessary to secure any Supplementary decree for enforcing the liability against the mortgagor personally. This finding, however, does not by itself dispose of the other point raised in connection with the maintainability of the execution. That relates to the priority in which the two liabilities under such a composite decree can be enforced one after another, or, in other words, it relates to the circumstance in which the decree-holder can enforce the personal liability against the mortgagor when such a composite decree is passed in his favour.

27. As to this, this much at least has been conceded by the Advocate-General and is clear both on the principle underlying the rule laid down in O. 34. R. 6 of the CPC, as also on authorities that even when the decree passed is a composite one providing both for the personal liability and for sale, the execution against personal liability cannot be issued unless the mortgage property has been sold and proceeds found insufficient to satisfy the mortgage: Kommochi Kathar v. Pakker, ILR 20 Mad 107 (Z-25); ILR 31 Bom 244 (M); Munawar Husain v. Jani Bijal Shankar, ILR 27 All 619 (Z-26) and Thayammal v. Muthukmaraswami AIR 1929 Mad 881 (Z-27) and AIR 1918 PC 159 (F).

28. It has, however, been argued that on the facts of this case no question of sale of the hypothecated property or ascertainment of the sale proceeds as also of the deficiency arising on the sale can arise for it is the admitted case of the parties that the property hypothecated has already vested in the State of Bihar under the Land Reforms Act and that it is no more available for sale. According to the Advocate-General in a case where the mortgage property is destroyed or ceased to be available for sale without any blame attaching to the decree-holders, the decree for personal liability under O. 34, R. 6 of the CPC may be applied for execution straightway and if a decree for personal liability has already been passed at the time when the decree for sale was passed, it can be enforced at once without undergoing the formality of putting the property to sale in the attempt to find out the proceeds or the deficiency arising from the same.

29. In support of this contention reliance has been placed by him on the decisions in ILR 38 Mad 677 : (AIR 1915 Mad 452) (Z-17); AIR 1915 Pat 350 (S); AIR 1921 Pat 49 (Z-15); Bisheshar Nath v. Chandu Lal, ILR 50 All 321 : (AIR 1928 All 71) (Z-28) and Ganeswar Pariada v. Harish Chandra Dutta. AIR 1940 Pat 616 (Z-29). Then there the other authorities also which give support to that proposition for example, the decisions in Chand Mall v. Ban Behari, AIR 1924 Cal 209 (Z-30); Kapadvanj Municipality…Defendant; v. Ochhavlal Damodar Parikh…Plaintiff.. AIR 1928 Bom 328 (Z-31) Tharia Ram v. Mahla Ram, AIR 1934 Lah 174 (Z-32); Pirbhu Narain Singh v. Baldeo Misra, ILR 29 All 260 (Z-33) and Jayram Das v. Tokendra Nath, 42 Cal WN 47 (Z-34).

30. Lal Narayan Sinha has strenuously challenged this proposition advanced by the Advocate-General. According to him in no case personal liability can be enforced until the property under the mortgage has been exhausted and actually sold. This according to him is established by the law as laid down in AIR 1938 All 98 (V) and AIR 1951 All 195 (FB) (J). The former is a decision of a single Judge. The latter is the decision of a Full Bench wherein the rule of law laid down in the former case has been quoted with approval.

31. The main points for consideration before the Full Bench were two (1) as to how far the dismissal of an application once filed under O. 34, R. 6 of the CPC, operates as res judicata against, the second filing of a similar application under that very provision and (2), whether on a dismissal of an application once filed under O. 34, R. 6, similar remedy can be sought by a fresh application under Section 151 of the CPC. In answer thereto their Lordships held that the dismissal of the first application operated as res judicata and as such the second application under O. 34, R. 6 of the CPC, could not be filed and also that on the dismissal of the first application under O. 34, R. 6 of the CPC; the same remedy could not thereafter be sought Under Section 151 of the CPC. Thereafter having thus disposed of the two main points raised before them their Lordships entered into the question as to whether a personal decree on the basis of a mortgage can at all be enforced if the conditions laid down under O. 34, R. 6, are not fully satisfied. In answer thereto their Lordships supported the view taken in the earlier decision in AIR 1938 All 98 (V) and differed with file one expressed in ILR 50 All 321 : (AIR 1928 All 71) (Z23). In the case reported in ILR 50 All 321 : (AIR 1928 All 71) (Z-28) Boys J., observed as follows:

“The mortgagee can get a decree for sale and though it is of immediate use to him, no harm is done if that decree is combined with conditional decree under O. 34, R. 6, AIR 1918 P.C 159 : (47 Cal 370) (F), 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 instantly 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 last under certain conditions, is merely suspended until those conditions are fulfilled, as is clearly indicated by O. 34, R. 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 O. 34, R. 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 that 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 a personal decree.”

32. Niamatullah J., differing with the aforesaid view in AIR 1938 All 98 (V), has held as follows:

“That a Court can pass a simple money decree, wholly apart from the provisions of O. 34, R. 6 of the CPC, is a view which found favour with the learned Judges who decided ILR 50 All 321 : (AIR 1928 All 71) (Z-28). This Court has, however, repeatedly held that a simple money decree under O. 34, R. 6 of the CPC, can be passed when and if the sale has taken place and the sale proceeds have proved insufficient for the satisfaction of the mortgage money. Order 34, R. 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 that 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 O. 34, R. 6 has occurred, for instance, Behari Lal v. Bisheshwar Dayal, 9 All LJ 569; 14 Ind Cas 591 (Z-35) observations in the Full Bench case in Radha Krishna v. Tej Saroop. 1929 All LJ 1294 : (AIR 1930 All 69) (Z-35); Darbari Mal v. Mula Singh, ILR 42 All 519 : (AIR 1920 All 155) (Z-37) and Babu Lal v. Raghunandan. 1932 All LJ 311 : (AIR 1932 All 475) (Z-38). If a simple money decree can be passed wholly apart from O. 34, R. 6 of the CPC its provisions are rendered absolutely nugatory. If we accept the correctness of the view taken in ILR 50 All 321 : (AIR 1928 All 71) (Z-28), 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, ILR 50 All 321 : AIR 1928 All 71 (Z28), as good law”. In my opinion, with all respect to the learned Judges, who decided the cases reported in AIR 1938 All 98 (V) or AIR 1951 All 195 (FB) (J), the reasons given in support of the law laid down in these decisions are not decisive. By now it has been well-established that every regulation laid down in a procedural law does not necessarily constitute a mandatory provision taking away the jurisdiction of the Court to pass any order in any contravention of that particular procedure. On the contrary, the law of procedure as a rule is directory and stands to serve a defined purpose namely justice which is the ultimate goal to be reached by every Court of law and not in any case to obstruct or negative justice.

33. It may be that in certain cases a particular provision given in any procedural law may be made mandatory. In that case no doubt any contravention of the rule may result in making the order passed thereunder void. That, however, will be so only in cases where the law is clearly made mandatory and not in all. In cases where a particular procedure in law is only directory, the irregularity or contravention, if any, in acting upon it will, in my opinion, make the order passed thereunder only voidable and as such it will become enforceable in law if not objected to in time and in a manner prescribed by law and further may operate as res judicata between the parties.

34. Now the law as laid down in O. 34, R. 6 of the CPC for enforcing the personal liability is, as already stated, only directory. Therefore, I think that if a decree for personal liability is passed in contravention of R. 6 of O. 34 of the CPC, along with the decree given for sale and if the same is not objected to by the mortgagor that will be a good decree both in respect of the relief for sale as also for the personal liability and thereafter it will not be necessary, as already stated above, to get a supplementary decree passed under O. 34, R. 6. It further follows from it that if such a decree has been once passed and the property hypothecated under the mortgage is not available for the sale, the court may, if it is satisfied to that effect, allow the decree-holder to levy the execution against the personal liability of the mortgagor.

35. In the Full Bench case referred to, it appears that the learned Judges did not consider that case on the footing that a decree for personal liability had already been passed and, therefore, whether in the circumstance it was still necessary for the decree-holder to get a fresh decree under O. 34, R. 6. By implication, however, it appears that perhaps they negatived it. I, however, for the reasons already given, think that the other view as already discussed is more logical and consistent with the principle underlying O. 34, R. 6 of the CPC.

36. In that view of the matter, the decisions relied upon by Mr. Sinha in support of his last contention are not of much avail to him. That being so, it has to be held that if the property hypothecated under the mortgage has in the opinion of the Court become non-available for sale, the decree already passed for personal liability can be enforced straightway without taking any step for the sale of that property. This disposes of the objection raised on the construction and implication of O. 34, R. 6 of the CPC. Now I take up the other contention based on the construction and implication of Section 4(d) of the Bihar Land Reforms Act.

37. According to Mr. Sinha, in this case it is not only the property under mortgage which has become non-available for sale under the provisions of the Land Reforms Act but further in a case like this the very remedy by suit in a court of law for the realisation of money due under the mortgage is barred under S. 4(d) of that statute. Therefore, as submitted by him, if the property hypothecated has vested under the Land Reforms Act in the State of Bihar as it has and as such has become non-available, no suit can any more lie or proceed in a court of law for the realisation of money due under the mortgage either by the sale of property hypothecated or by enforcing the personal liability. This Section 4(d) of the Land Reforms Act says:

“No suit shall lie in any Civil Court for the recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on such estate or tenure, and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped.”

38. In my opinion, the case, where all the properties under a mortgage or charge have under the Land Reforms Act vested in the State of Bihar, is fully met by the language of the section though it has to be conceded that this section, so far as it is applicable to a case where the properties under mortgage or charge are many and out of them only some have vested in the State of Bihar and some are still intact, is not at all free from difficulties.

39. Here, however, we have to deal with a case where the entire property under the mortgage has by now vested in the State of Bihar. Therefore, for the decision of this case those factors, which may have to be weighed in dealing with the former class of cases, are not relevant nor necessary to be discussed here. As I read the Land Reforms Act, I And that it places two major and independent restrictions on the rights of an encumbrancer who has advanced money on the security of properties which however thereafter vested in the State of Bihar under that Act. The one is provided in S. 4(a) and the other in S. 4(d) of that Act. S. 4(a) says:

“Subject to the subsequent provisions of this Chapter, such estate or tenure……………… shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act.”

40. This section, as it is clear from its language, deals with the property and provides that once the property under mortgage or charge vests in the State under the Land Reforms Act, it becomes free from all such incumbrances. Thereafter, therefore, so far as that property is concerned, it does not remain a security for the realisation of the money that may have been advanced on that basis though along with the vesting a substituted security is at once provided in it under S. 24(5) of the Act: That section says:

“………….. in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall first be payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder……….”

41. This is exactly on a line with what is provided in Section 73(2) of the Transfer of Property Act which reads:

“Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894, or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgage shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.”

42. Had, therefore, the matter stopped at S. 4(a), it could be said that once a property under mortgage or charge has vested in the State of Bihar under the Land Reforms Act it is automatically released from that encumbrance and thereafter it is open to the mortgagee either to follow the substituted security provided in S. 24(5) or to enforce the personal covenant, if any, against the debtor by suit in a civil court for the recovery of his money.

43. The Act, however, does not stop at S. 4(a). It goes further and in S. 4(d), which has already been quoted above, unequivocally lays down that once a property under mortgage or charge vests in the State of Bihar under the Land Reforms Act, the very remedy thereafter for the encumbrancer to recover the money advanced on the security of that property by way of suit in a civil court from the outgoing proprietor is lost so much so that even if any such suit or proceeding be pending on the date of vesting for the recovery of such money it has to be dropped.

44. That being so, S. 4(d) does not deal with the property given under mortgage or charge, as is the case with S. 4(a) of the Act, but with a different subject-matter, namely, the remedy by way of suit in a civil court which the general law provides to an incumbrancer for the recovery of his money advanced on the security of that property. Further, there is no valid reason to hold that the aforesaid plain meanings of the two sections at least in a case like the one before us where all the properties under mortgage or charge have vested in the State are in any way likely to lead to any conflict or inconsistency with either the scheme of the Act or the principle underlying.

45. It is no secret, as is evident not only from Ss. 14(1) and 28 but also from other provisions given in the Act, that the outgoing landlords or tenure-holders are not to be compensated in full on the basis of the market price for the estates taken over from them, but on a very much reduced and artificial basis. Therefore, any provision made in the Act with a view to scale down similarly to a certain extent the debts advanced on the security of the estates or tenures taken over under the Act cannot in the absence of any ambiguity be nullified or limited in its scope either on the ground of equity or unreasonableness.

46. As to whether there is any such scheme provided in the Act for the scaling down of the debt or not, there can be no doubt. For when the S. 4(d) is read along with other provisions of the Act like Ss. 14(1), 16 and 24(5), the only irresistible conclusion that one is led to is that the framers of the Act while laying down rules for assessing the compensation of the estates or tenures taken over under the Act on a reduced and artificial basis were at the same time making provisions therein for some relief to the outgoing proprietors and tenure-holders of those estates and tenures in the matter of liabilities already incurred by them on the security of those properties. And in that connection the first provision made is the one given in S. 4(d) of the Act and that in order to give effect to that scheme first of all bars all remedy by suit in a civil court for the recovery of any moneys due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure.

47. Then comes S. 14(1). That in place of the old remedy provides a new remedy for the realisation of the money advanced on the security of estates and tenures taken over under the Act and says:

“Every creditor, whose debt is secured by the mortgage of, or is a charge on, any estate or tenure or part thereof vested in the State under S. 3 or 3-A may, within six months of date of such vesting or the date on which such creditor is dispossessed under the provisions of Cl. (g) of S. 4, or within three months from the date of appointment of the Claim Officer, whichever date is later, notify in the prescribed manner his claim in writing to a Claim Officer to be appointed by the State Government for the purpose of determining the amount of debt legally and justly payable to each creditor in respect of his claim.”

48. Thereafter in Ss. 16 and 24(3) the Act makes provisions to deal with the debt due on the security of the properties taken over under it. S. 16 lays down a defined formula on the basis of which the amount dug to a secured creditor has to be determined by the Claims Officer and S. 24(5) fixes a maximum which under that calculation can be paid to such a creditor.

49. Thus, it is clear that these sections taken together constitute one integral whole and aim to lay down a defined scheme for the realisation of the debt on a new reduced basis. Then it cannot be disputed that unless the general remedy by suit in a Civil Court for the realisation of the money advanced on the security of the property vested in the State under the Act is completely barred, that scheme cannot be made effective.

50. Therefore, any interpretation of S. 4(d) to mean that no suit shall be brought in any civil court for the recovery of the mortgage money or money advanced by a charge so far as the vested estates are concerned or that if a suit or proceeding is already instituted such suit or proceeding shall be dropped so far as the vested estates are concerned will not only be inconsistent with the scheme as is provided in Ss. 14(1), 16 and 24(5) of the Act but will stand in negation of it.

51. For in that case the remedy of an incumbrancer to recover his money advanced on the security of the property vested in the State by suit in a civil court will not be completely barred but will be only curtailed to the extent of the property alone which has vested in the State. In other words, in that way the remedy by suit in the civil court will still remain open to the creditor at least to the extent of enforcing the covenant against the person of the debtor.

52. If that be accepted as the correct implication of S. 4(d), then in all cases where the debtor is found to have properties other than those given in security and which have not vested in the state and are sufficient to cover the dues as stipulated in the contract, the creditor will as the rule follows the remedy by suit in the civil court and try to get at least a personal decree against the debtor, for, that will enable him to realise his entire due without any reduction thereof as contemplated by Ss. 16 and 24(5) of the Act and thus will endeavour as far as possible to circumvent the alternative remedy provided in S. 14(1) of the Act and its disadvantages as is apparent from the restriction imposed in connection therewith under Ss. 16 and 24(5).

53. That means the entire scheme embodied in the Act for the scaling down of the debts will be frustrated. Therefore, such an interpretation of S. 4(d) can in no case be held to be consistent with the scheme of the Act. And in any view of the matter at least in a case like the one before us where all the properties given in security have vested in the state, there does not appear to be any valid reason to so interpret S. 4(d) as to reduce its meaning to what is already provided under S. 4(a) or to put such limitation in the words used therein as to make that and other sections of the Act like Ss. 14(1), 16 and 24(5) nugatory and surplusages.

54. It is the well-established rule of construction that if two alternative constructions of a statute are possible, that construction must be adopted which would promote the object intended by the framer of the Act and the alternative construction must be rejected which would frustrate the object: Heydon's case, (1584) 3 Co. Rep 7a (Z39).

55. If therefore, I am correct in my view that S. 4(d) deals with the remedy and not with the property, under the mortgage or charge, then once that property vests in the State, there is no remedy left open to an encumbrancer to realise the, money advanced by him to the outgoing proprietor on the security of that property by suit in a civil court, may that suit be for the sale of the property under the mortgage or charge, or may it be for any personal decree against the mortgagor.

56. The learned Advocate General in supporting the order under revision has on this point placed much reliance on the decisions of Raghubir Saran Rastogi v. Kaviraj Basudevanand. 1953 BLJR 563 (Z40), and AIR 1955 All 566 (Z6). The former decision deals with a case where money had been secured by a mortgage or charge on a number of properties, some of which thereafter vested in the State under Section 3 of the Bihar Land Reforms Act and others were still intact.

57. On those facts Ramaswami J., (as he then was) in that case held that the bar of S. 4(d) of the Act is limited to the estates that have vested in the State and does not extend to the estates or portions of estates which are not so vested and also that Section 14 of the Bihar Land Reforms Act is enacted in a permissive form and where the mortgage relates to notified estates and to estates, which are not notified, it is open to the creditor to file a suit or to prosecute an execution case in the civil court but he cannot pursue his remedy in the civil court so far as vested estates are concerned.

58. In other words, in such a case, according to the law laid down therein, it is open to the creditor to make an election as to the choice of his remedies. That means that in that case the creditor may give up his right of filing a claim under S. 14 with respect to the vested estate and prosecute the suit or execution proceeding, so far as estates which have not vested, in the civil court or he may give up his remedy in the civil court and prosecute his claim solely under S. 14 before the Claims Officer.

59. Perhaps this view may be supported on the footing that the money advanced on the security of many properties may in such a case be taken as if it had been advanced either on those properties alone which have vested in the state and in that way the special remedy provided in the Act therefore becomes available to the creditor or exclusively on those properties which have not vested in the State and therefore the general remedy open in law is not, affected by any vesting of properties other than those.

60. Or in such a case the section may perhaps on equitable principles be construed to mean that no suit shall lie in any civil court for the recovery of any money due from a proprietor or tenure-holder to the extent to which its payment is taken to be secured by a mortgage of, or a charge on, his estate or tenure that has already vested in the State and that all suits and proceedings for the recovery of any such money, which may be pending on the date of vesting, shall, to that extent, be dropped.

61. But in any case here, as already stated, we are not faced with a case of that class which was under consideration in 1953 BLJR 563 (Z40). In the case before us all the properties under mortgage have vested in the state of Bihar. That being so, there is no reason why the plain meaning of S. 4(d) should not be given full effect to. Further, in the case reported in 1953 BLJR 563 (Z40), there was no prayer made for any personal decree against the debtor.

62. Therefore, that decision cannot be an authority for any proposition on that point. There are however, certain observations made in that case which in their wider amplitude may mean to suggest that, even in cases where all the properties given under mortgage or charge have vested in the State, the remedy by a suit in the civil court for a personal decree against the debtor is not barred under S. 4(d) of the Act. For example, at one place in that case it is observed that—

“Grammatically the language of S. 4(d) may admit of the interpretation contended for the respondent but the consequence of such an interpretation would be startling and unjust. For example, S. 4(d) would, on such an interpretation, prohibit a mortgagee from enforcing the personal covenant. If a purely grammatical construction is adopted, the mortgagee would be deprived not merely of his security but he will be prohibited from obtaining even a money decree for the amount he has advanced.”

63. But the facts of that case show that therein the question of enforcing any personal covenant was not at all involved. It related exclusively to the properties covered by the mortgage dated the 5th August, 1938. What was thereunder given in mortgage was the 3 as 3 pies share of the entire mahal named Gaddi Masnaudi.

64. That mahal had a number of villages in it. On 17th August, 1942, the Central Government acting under the powers conferred by R. 75-A(2) of the Defence of India Rules acquired four villages out of that mahal and in due course a sum of Rs. 4,52,000 was deposited by the Government in court as the compensation price of those four villages. In the meantime on 26th January, 1946, on the basis of the aforesaid mortgage a final mortgage decree was passed.

65. Thereafter in appeal that decree was modified and it was therein specifically stipulated that the decree-holder was to proceed in the first instance against the compensation money payable by the Government in respect of the acquisition of the four villages of the mahal. But in spite of that when that modified decree was put under execution on 5th June, 1950, an objection on behalf of the judgment-debtor was raised that it could not proceed against the compensation money payable by the Government for the four villages.

66. This objection was ultimately on 9th August, 1951, negatived by the High Court in appeal. Subsequent thereto on the 27th October, 1952, while the decree-holder had already taken steps for the attachment of the amount of Rs. 83,000/- which was proportionate compensation for the 3 as 3 pies share which was actually mortgaged, the entire mahal, Gaddi Mansnaudi under Section 3 of the Bihar Land Reforms Act vested in the State of Bihar.

67. This created a new situation and the judgment-debtor taking advantage of that then raised the objection that Section 4(d) of the Bihar Land Reforms Act was a bar to the execution and as such the mortgagee decree-holder could not attach the amount of Rs. 83,000/- lying in deposit. In answer thereto this Court in appeal held that Section 4(d) of the Bihar Land Reforms Act did not apply to that execution and that it was still open to the decree-holder to realise his money by execution against the price money lying in deposit.

68. Thus, it is clear that in that case there was no prayer made for the execution of the mortgage decree against the person of the judgment-debtor or against any of his property which was not the subject-matter of mortgage. As such, the observation made in that case on the question of personal liability is obiter and has no binding force. In Bole v. Horton, (1673) Vaugh 360 (Z41), Vaughan C.J, observed:

“An opinion given in Court, if not necessary to the judgment given of record, but that it might have been as well given if no such, or a contrary, opinion had been broached is no judicial opinion nor more than a gratis dictum.”

69. Similarly the case reported in AIR 135 All 566 (Z6), is not of any help in the decision of the present case. In that case the properties given in mortgage were the zamindar properties. And the decree passed on the basis of that mortgage provided that in case the sale proceeds of the Zamindari properties were not found sufficient to pay off the decretal amount, the decree-holder would be entitled to execute his decree against the person and other property of the judgment-debtor.

70. By the time the decree was put into execution, the zamindari properties given in mortgage had vested in the State under the U.P Zamindari Abolition and Land Reforms Act, 1950. In those circumstances, the decree-holder in his application for execution prayed for the attachment of certain houses and other properties of the judgment-debtor, that is, properties other than those mentioned in the decree. Thereupon under Section 47 of the CPC the judgment-debtor filed an objection and therein he questioned the attachment on the following grounds—

(i) That the decree-holder could not be allowed to execute his decree against the properties which were not mortgaged unless he first applied for a personal decree against the judgment-debtor, and,

(ii) That the decree-holder has no right to proceed against the other properties of the mortgagor until and unless he has exhausted his remedy against the zamindari properties mortgaged which are now substituted by the compensation money to be given by the State.

71. In answer to the first objection the learned Judges, who heard that case, held that the decree was a composite one and, therefore, it was not necessary any further for the decree-holder to secure a fresh order under O. 34 R. 6 of the CPC, for executing the decree against the properties not mortgaged. As to the second objection it was laid down therein that the presence of the compensation money did not stand as a bar for taking an execution against the properties which were not mortgaged.

72. These findings were sufficient to dispose of the main points raised by the judgment-debtor. It, however, appears that the judgment-debtor further contended that under Section 6 of the U.P Zamindari Abolition and Land Reforms Act, 1950 “no execution proceeding can be taken against the zamindari property”. In answer thereto the learned Judges held that they were unable to accept that contention “for the simple reason that the decree-holder did not apply for execution of his decree against the zamindari property.”

73. This observation made in the decision, I think, cannot be of any avail to the respondent here in view of the fact that in the U.P Zamindari Abolition and Land Reforms Act, 1950, there does not appear to be any provision same or similar to one laid down in Section 4(d) of the Bihar Land Reforms Act of 1950. Under Section 6 of the U.P Zamindari Abolition and Land Reforms Act the bar, if any, is against the attachment and sale of a Zamindari property and not against the remedy by suit in civil Court for the recovery of the money advanced on the security of the Zamindari property. Therefore, that decision also fails to give any support to the respondent.

74. Next, it has been argued that under S. 4(d) what is prohibited is the institution of a new suit after the vesting of the property for the recovery of any money due from the proprietor or tenure-holder, the payment of which is secured by a mortgage or is charge on such property and not the initiation of any fresh execution on the basis of a decree which has already been passed. In support of this argument reliance has been placed on the last clause of S. 4(d) wherein the reference made is both to suits and proceedings though in earlier part of that section what is referred to is only suits.

75. This argument is obviously based on the assumption that the word “proceeding” used in the last clause of that section necessarily implies execution proceedings and that the word “suit” used in the earlier clause of the section does not include any such execution proceeding. In my opinion, there is no justification for such an assumption. The word “suit” in the first clause of this section has been used in a comprehensive sense and in that sense it is applicable to any proceeding in court of justice by which an individual pursues that remedy which law affords him.

76. The modes of proceedings may be various but if the right is litigated between the parties in the court of justice that is a proceeding in a suit. In the case of Vajeram Sakerram Dewan v. Purshotumdas Jamnadas, 7 Bom LR 138 (Z40) suit is defined “to be a prosecution of some demand in a court of justice”. Further in the case of Muhammad Habibullah v. Tikam Chand, AIR 1925 All 270 (2) (Z43), the word “suit” has been defined to include “execution proceedings”.

77. Then in the context of the various sections of the Act and the principle underlying them also it is difficult to hold otherwise than that the word “suit” in S. 4(d) of the Act has been used in a comprehensive sense and thus it includes execution proceedings too. As to why the word “proceedings” has been specifically used along with the word “suit” in the last clause of S. 4(d) it is enough to say that thereby at that place reference is intended to be made to such proceedings as are not covered by suit.

78. Therefore, I think that once a property vests; in the State under the Bihar Land Reforms Act, 1950, not only no suit but not even an execution can lie in any Civil court for the recovery of any, money due from the proprietor of that property the payment of which is secured by a mortgage or is a charge on that property. That being so, there is no substance in the aforesaid contention raised on behalf of the respondent that S. 4(d) does not apply to the present execution which has been levied after the vesting of the property.

79. In the result, therefore, it has to be held that Section 4(d) of the Land Reforms Act, on vesting in the State of all properties given in mortgage under the document, stands as a bar against any proceeding in Civil Court for the realization of the money advanced to the out-going landlord on the security of those properties. In this view of the matter I hold that the court of execution was right in passing the order which it did on 23rd December, 1854, and at least on merit the order passed contrary to it on 20th April, 1955, is not consistent with S. 4(d).

80. It has, however, been argued on the side of the opposite party that the order passed on review on 20th April, 1955, whether right or wrong on merit, is not open to be revised under Section 115 of the CPC. In my opinion, on principle, there is no substance in the contention that no revision lies against such an order and in fact no authority has been cited before us in support of that contention.

81. It is true that under R. 7 of O. 47 of the CPC, an appeal against an order granting an application for review lies only on limited grounds as stated therein, but it does not follow from it that on grounds other than these no revision lies against such an order.

82. The last contention raised on behalf of the petitioner is that no review lay against the ex parte order dated the 23rd December, 1954. In my opinion, there is no substance in this contention and it clearly stands negatived by the decision in Ghansham Singh…(Applicant); v. Lal Singh…(Opposite Party).*, ILR 9 All 61 (FB) (Z44). So far as the decision in Chhajju Ram v. Neki, AIR 1922 PC 112 (Z45), is concerned, that does not, in my opinion, any way, modify or limit the rule of law laid down in ILR 9 All 61 (FB) (Z44).

83. Order 47, R. 1 lays down three grounds for review by an aggrieved party: (i) the discovery of a new or important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree under review was passed or the order under review was made, (ii) on account of some mistake or error apparent on the face of record and (iii) for any other sufficient reason.

84. The case of AIR 1922 PC 112 (Z45), so far as it deals with the ground for review, explains only the implication and the scope of the last ground, namely, “any other sufficient reason”. In the case before us the prayer for review in the court below was perhaps made on the ground that the order dated the 23rd December, 1954, was passed at the back of the decree-holder without any notice to him.

85. If it was so, then, in my opinion, it was a clear case of mistake or error apparent on the face of the record. Therefore, in that view of the matter, review did lie and even if it be accepted that no review lay, the court of execution had still inherent power under Section 151 of the CPC to restore the execution case which stood dismissed as a result of the ex parte order passed on the 23rd December, 1954 as laid down in the case of Mt. Kapura v. Narain*, ‘ILR 27 Pat 187 : (AIR 1949 Pat 491) (Z46).

86. That being so, the second contention has no substance and in any case this part of the discussion has only an academic value. Then it has been argued that at least on merit the order passed on the 20th April 1955, allowing the application for review is not sustainable, inasmuch as the court in passing that order has not referred to any material sufficient to fulfill the ground for review. In my opinion, this last contention is not completely without force.

87. But in view of what I have found above it is not necessary to base the decision of this case on that short ground. If, as discussed above, the execution cannot proceed in law, the court below: in passing an order contrary to it has acted illegaily and with material irregularity in not following the mandatory provision of Section 4(d) of the Bihar Land Reforms Act. Therefore, on that ground alone the order dated the 20th April, 1955, should be set aside.

88. Accordingly the application is allowed with costs.

89. Hearing fee Rs. 55/-.

90. Choudhary, J.:— I agree.

V.S.B

91. Application allowed.