BULKEE BEE Vs. KAKA HAJEE MUHAMMAD UMMAR SAHIB

JUDGEMENT

(1.) Respondents 1 and 2 herein are the transferee decree-holders of the mortgage decree in O.S. No. 40 of 1912 passed on the 5 March, 1914. The mortgaged properties were sold but the sale proceeds were not sufficient to cover the decree amount. They applied to the Lower Court for execution against the property of the mortgagors not covered by the mortgage. The mortgagors objected to the execution on the ground that there was no personal decree against them and that the application was barred by limitation. The learned District Judge overruled the objection and allowed execution to proceed against the property of the judgment-debtors not covered by the mortgage. The judgment-debtors have preferred this appeal.

(2.) It is contended by Mr. Viswanatha Aiyar for the appellants that no decree was passed under Order 34, Rule 6, and therefore there is no personal decree against the mortgagors and the order of the District Judge is wrong. The decree passed on 5 March, 1914, was only a preliminary decree and the final decree was passed on the 27 August, 1914. In the final decree no provision was made for proceeding against the properties other than those covered by the mortgage; and no personal decree was passed against the mortgagors under Rule 6. The question is whether the decree as it is can be executed against the properties of the judgment-debtors other than those covered by the mortgage.

(3.) Under the present Civil P. C., in the case of a mortgage, preliminary decree is passed under Rule 4 of Order 34. If the mortgagor-defendant does not pay into Court the amount mentioned in the preliminary decree within the time fixed in the decree, a final decree for sale has to be passed under Rule 5, and if the proceeds of the sale of the mortgaged property are not sufficient to cover the decree amount, a personal decree for the balance has to be passed under Rule 6. It is the decree that is passed under Rule 6 that is executable against the mortgagors personally. In the absence of a decree under Rule 6 the mortgagee is not entitled to proceed against the property of the mortgagors other than those covered by the mortgage.