Divatia, J.:— This is an appeal by the plaintiff against an order rejecting his application for attachment of certain property belonging to his judgment-debtor. The defendant, who is an agriculturist, had mortgaged some of his property to the plaintiff and a consent decree was taken by the parties on 22nd November, 1938. The decree directed that the decretal amount was to be paid by instalments of Rs. 600 per year and the first instalment was to be paid on 15th January, 1940; on failure to pay any instalment the plaintiff was to apply to the Court under section 15-B of the Dekkhan Agriculturists' Relief Act, to realise the instalment and on failure to pay any two instalments the plaintiff was to realise the whole amount by sale of the mortgaged property; if there was any deficit, it was to be realised from defendants 1, 3 and 4 and from the joint family property of defendant 2. After the decree was taken the plaintiff made the present application on 30th June, 1939, by which he sought to attach certain property of the judgment-debtor other than the mortgaged property on the ground that there was likelihood of a deficit occurring after the sale of the mortgaged property, and as the defendant was trying to do away with his other property, it was necessary to protect the plaintiff's interest by attachment of that unmortgaged property of the judgment-debtor. The application appears to have been made under O. 38, R. 5, which applies to attachment before judgment. The-learned Judge rejected it as not maintainable on the ground that the mortgage-decree had already been passed and the suit having been therefore terminated, no application for attachment before judgment could be filed at that stage. He was also of the opinion that the application was premature as it cannot be filed unless it was found that there was a deficit after the sale of the mortgaged property. It was contended before him that the application was maintainable in any case under the inherent jurisdiction of the Court under section 151 of the cpc, but that contention was rejected on the ground that it did not follow that the Court had power to grant such attachment after the decree simply because there was no express provision in the Code to that effect.
2. The plaintiff has filed this appeal against that order. On behalf of the respondent, Mr. Gajendragadkar has taken a preliminary objection that the appeal does not lie because it is not covered by O. 43, R. 1(q) of the CPC, which provides for an appeal against an order under Rr. 2, 3 or 6 of O. 38. It is contended that the order rejecting the application for attachment before judgment does not fall under R. 6, because that rule speaks of an order of the Court directing certain property to be attached where the defendant failed to show cause on an application by the plaintiff, and that the rule does not apply to a case where the plaintiff's application for attachment before judgment has been dismissed. It is true that sub-r. (1) of R. 6 speaks of an order of the Court directing attachment of the property. Sub-rule (2), however, says that where the defendant shows cause against an application by the plaintiff or furnishes the required security and the property specified has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit. This sub-rule would apply where on the application of the plaintiff an order for interim or conditional attachment has been made, and after hearing both sides the Court withdraws the attachment. The order of the Court, therefore, withdrawing the attachment after the defendant had shown cause would fall under sub-r. (2) and as such be appealable. That is the effect also of the authorities in (1932) 30 A.L.J 2281 and 14 Pat. 12. It is held in the latter case that there is no appeal where there was no conditional or interim order of attachment, but an appeal would lie where there is such an interim order. In the present case, it is clear that there was an order of interim attachment, the defendant showed cause against it, and the order of the learned Judge rejecting the plaintiff's application amounted, therefore, to an order withdrawing the attachment made at the instance of the plaintiff when the application was made. It is thus clear that the present order falls within sub-r. (2) of R. 6. The preliminary objection, therefore, fails.
3. On the merits, it is contended by Mr. Desai on behalf of the appellant that the plaintiff's application was made when the suit was pending even though the consent decree was taken by the parties. The argument is that in a mortgage suit any application made even after the preliminary decree was passed would be an application in the suit and not in execution by virtue of the provisions of O. 34, R. 5 of the CPC, and it would, therefore, be open to the plaintiff to apply for attachment under O. 38, R. 5, because under that rule it is open to a party to make an application for attachment at any stage of a suit. The argument goes further that even after the final decree is passed and liberty is reserved for applying for a personal decree under O. 34, R. 6, it would be open to the plaintiff to make such an application after the final decree and before the Court passes a personal decree, because that order is to be made by the Court which passed the original decree. This argument is no doubt supported by the decisions in 55 ALL. 1793, 58 ALL. 8844 and 46 Cal. 245;5 and it may be taken that it would be open to a plaintiff after the preliminary mortgage decree to apply for attachment before judgment in a proper case. Our Court has held that it is open to a party to apply for attachment before judgment of unmortgaged property before a preliminary decree is passed: see 33 Bom. L.R 5146.
4. The question is whether in the present case it is open to the plaintiff to apply for an order of attachment before judgment after the decree was passed. Now, it is material to note that the decree is not an ordinary mortgage decree falling under O. 34, R. 5, but it is a decree which is governed by the provisions of section 15-B of the Dekkhan Agriculturists' Relief Act, which in one material respect is different from an ordinary mortgage decree falling under O. 34. The difference is that while after an ordinary preliminary mortgage decree it is necessary to apply for a final decree, and thereafter further necessary to apply for a personal decree if there is a deficit, in the case of a mortgage decree under S. 15-B it is not necessary to apply for a final decree, and it has been held in a number of cases of our Court that such a decree is not required to be made final. Those decisions are 18 Bom. L.R 4757, 25 Bom. L.R 12148, 46 Bom. 7619 and 32 Bom. L.R 109310. Mr. Desai contends that there is a conflict between those decisions and a previous decision of this Court in 31 Bom. 12011, but we do not see any such conflict. The point in that case was as to whether it was open to the Court to grant instalments to an agriculturist in execution proceedings after the decree was passed against him, and it was held that it was so under section 15-B of the Dekkan Agriculturists' Relief Act. The point as to whether a preliminary decree under that section was required to be made final or not did not arise for decision in that case. Similarly the Full Bench decision in 38 Bom. L.R 56212, which follows the decision in 31 Bom. 120, is also not against the series of decisions mentioned above. In our opinion, it is established that in the case of a mortgage decree under section 15-B it is not necessary to apply for a final decree. The present decree is a composite decree inasmuch as it provides for the payment of the mortgage amount and sale of the mortgaged property in default of payment of instalments and it also directs personal remedy in case of deficit. It is clear, in our opinion, that after this decree, all further steps are to be taken in execution, If attachment of any property is prayed for after the decree, it would be governed by the provisions of s. 51 under which the executing Court can order attachment and sale of sale without attachment of any property an application for attachment only without sale which can be made before judgment under O. 38 cannot be made in execution. Moreover, it has been held in 19 Bom. 31813 as well as in 9 Bom. L.R 102614, that the words “in the course of any proceedings under a decree” in S. 15-B mean the Court which carries out the decree, i.e, the executing Court. It would, therefore, follow that once the Court passes a decree in a mortgage suit governed by the Dekkhan Agriculturists' Relief Act, the suit is terminated, and any application made thereafter is an application after the termination of the suit and must be deemed to have been made in the stage of execution.
5. It cannot be regarded as an application at any stage of the suit within the meaning of that expression in O. 38, R. 5 of the CPC. We think, therefore, that the learned Judge was right in holding that the application was not maintainable. The order of the lower Court is confirmed and the appeal is dismissed with coats.
6. Appeal dismissed.