Samanta Gagarnath Mahapatra And Others Judgment-Debtors v. Lokenath Sukul Decree-Holder .

Jwala Prasad, J.:— This appeal is directed against the decision of the District Judge of Cuttack, dated the 26th of May, 1919, allowing an application of the respondent decree-holder made under Order XXXIV, rule 6 of the CPC, for a personal decree against the appellants. The respondent had obtained a mortgage decree in respect of three properties one of which was situated in Puri and the other two in the Native State of Nayagarh. He executed the decree and sold the property situated in Puri District, but the price fetched by the sale of this property was not sufficient to satisfy the entire decretal amount. At his instance the decree was transferred to the Native State of Nayagarh for execution but the Superintendent of that State refused to, execute the decree as it was of a Court in British India. The decree-holder therefore made an application for a personal decree under Order XXXIV, rule 6 of the CPC.

2. The Munsif rejected this application on the ground that all the mortgaged properties were not sold and unless and until that was done the plaintiff was not entitled to a personal decree under Order XXXIV, rule 6. The learned District Judge differed with the Munsif and held that the plaintiff was entitled to a personal decree under the said rule. The decision of the learned District Judge is challenged in this Court and in support of it reliance is placed upon the case of Ram Ranjan Chakravarty v. Indra Narain Dass(1). In that case the mortgagee after the institution of the suit released a portion of the mortgaged property and the sale of the remaining property being insufficient he applied for a personal decree under section 90 of the Transfer of Property Act. This section has been superseded by rule 6 of Order XXXIV of the CPC. The decision in that case has no application to the present one inasmuch as the mortgagee had, without the consent of the mortgagor, released a substantial portion of the property origin ally mortgaged to him. The mortgagee in the present case did not release any portion of the mortgaged properties. On the other hand he strenuously made effort to sell the properties mortgaged to him. The present case approaches nearly to the case of Pirbhu Naram Singh v. Amir Singh(2) in which, after the sale of some of the mortgaged properties, the decree was sent to the Collector for the sale of the remaining properties.

3. The Collector discovered that some of the remaining properties were in fact occupancy holdings and in others the judgment debtor had no interest at all. The Court held that the decree-holder was entitled to a personal decree under section 90 of the Transfer of Property Act vide also Periyasami v. Muthia Chettiar(3), and Purna Chandra Mandal v. Radha Nath Dass(4)]. This court, in the case of Rakhal Chandra Digar v. Sidhi Nath Singh(5), held that where the mortgaged properties were not capable of being sold by reason of section 46 of the Chota Nagpur Tenancy Act, the mortgagee was entitled to proceed against other properties of the mortgagor. From the judgment of Chapman, J. it appears that he was inclined to hold that a mortgagee is entitled to abandon his claim on the mortgaged properties and ask for a personal decree against the mortgagor without first bringing to sale the mortgaged properties. This view was arrived at on a consideration of the aforesaid case of Pirbhu Narain Singh v. Amir Singh, and the case of Javerbhai Jorabhat v. Gordhan Narsi(6). It was further found in that case that the mortgage decree in question did contain a clause giving a personal decree in favour of the mortgagee. The decree drawn up was not merely a mortgage decree in accordance with the form prescribed in the Code of Civil Procedure, No. 7, Appendix D. The decree in the present case also directs the mortgagor to pay the sum decreed within a certain time. There was therefore a personal decree also against the mortgagor contained in the mortgage decree in question.

4. In this view perhaps it may not be considered necessary to pass another personal decree under Order XXXIV, rule 6, and the decree-holder would have been permitted to execute the decree against the person and other properties of the judgment-debtor straightaway. The result to the judgment-debtor would have been the same whether the decree as it stands is allowed to be executed as a personal decree or another personal decree is made under Order XXXIV, rule 6.

5. In the present case I do not think necessary to dismiss the application of the decree-holder simply upon the ground that it is open to him to proceed to execute the decree as it stands without any further order under Order XXXIV, rule 6. I am very much influenced in this view by the fact that the decree-holder did sell one of the properties and the net proceeds of the sale proved to be insufficient to pay the amount due under the decree. He not having been allowed to sell the other properties is entitled technically to come under Order XXXIV, rule 6 As observed above the result is the same whether the decree-holder is allowed to execute the decree or a separate decree is passed under Order XXXIV, rule 6. The appeal is therefore dismissed with costs.

6. Ross, J.:— I agree.

7. Appeal dismissed.