SHEOBALAK PRASAD AWASTHI Vs. JUGAL KISHORE NARAIN

JUDGEMENT

(1.) This is an appeal against an order of the Subordinate Judge of Saran dated 5 October 1934, disallowing the appellant's objection to the execution of a compromise decree passed in a mortgage suit. After the sale of the mortgaged properties the decree-holders under the terms of the compromise proceeded against the other properties of the judgment-debtor. There was an objection to the effect that the execution against the person and other properties of the judgment- debtor could not proceed as there was no decree under Order 34, Rule 6, Civil P.C. The learned Subordinate Judge has disallowed this objection and the judgment- debtor has preferred this appeal. The learned Advocate for the appellants has referred us to the preliminary and final decrees passed in the suit, dated 25th March 1931 and 26 June 1933 respectively. The final decree refers to the preliminary decree and makes it final. The preliminary decree is in the usual form and there is no mention of any personal remedy, but it refers to the petition of compromise which has been attached to it in which a clear provision is made that if the sale proceeds of the mortgaged properties be not sufficient, other properties of the judgment-debtor will be liable to be sold.

(2.) The learned Advocate for the appellant hag contended that in spite of there being a provision in the petition of compromise, which was attached to the preliminary decree, the personal properties of the judgment-debtor could not be proceeded against without there being a fresh decree under Order 34, Rule 6. He relied upon a decision of this Court in Karimulla Shah V/s. Muhammad Raza 1918 Pat 262, where it was held that a formal order under Order 34, Rule 6 is necessary before the decree-holder can pursue properties not covered by the mortgage even where the original decree is a compromise decree-declaring the judgment-debtor's other properties liable in the event of the mortgaged properties not fetching a sufficient amount to cover the decretal debt and the judgment-debtor is entitled to know for how much money he is liable after the mortgaged properties have been sold. But in that case the learned Judges did not dismiss the execution proceeding. They directed that a proper order under Rule 6 be made by stating the amount of the liability of the judgment-debtor and formally authorizing the decree-holder to proceed against the properties not covered by the mortgage. This clearly indicates that the learned Judges were of opinion that, in such a case, the passing of an order under Order 34, Rule 6 was a mere formality and an order to that effect can be passed in the course of the execution proceeding, also. Later on however in Samanta Jagannath Mahapatra V/s. Lokenath Sukul 1921 Pat 49 another Bench of this Court of which Jwala Prasad, J., who was a member of the Bench which decided the previous case, was also a member, held that a decree-holder need not apply under Order 34, Rule 6 for a personal decree where the decree drawn up is not merely a mortgage decree but is also a personal decree against the mortgagor.

(3.) In the present case, as I have already stated, the final decree, which is under execution, makes the preliminary decree final which in its turn refers to the petition of compromise in which the judgment debtor's personal liability for sums found due after the sale of the mortgaged properties has been clearly stated. I do not find anything in Order 34, Civil P.C. which debars a Court from determining the personal liability of the mortgagor at the time when the preliminary decree is passed in a mortgage suit. Order 34, Rule 6 gives the plaintiff a right to apply for a personal decree after the sale of the mortgaged property. But this need not be done in a case where a personal decree has already been passed at the time of the passing of the mortgage decree. The same view seems to have been taken in Usafali Ibrahim V/s. Faizullabhai Sheikh. Mohamed bhai 1930 Bom 208. In that case the mortgage decree was based on an award which made no mention of any personal remedy against the mortgagor. It Was held that when the personal relief against the mortgagor was not expressly excluded by the terms of the mortgage or of the decree or both, the mortgagee after exhausting his remedy against the mortgage security had a right to recover the balance personally from the mortgagor. In Piaripada Dutta V/s. Sashi Bhusan Basu 1928 Cal 668 it was held that a fresh decree is not necessary when the personal remedy is provided for in the mortgage decree itself; and that Order 34, Rule 6 does not apply in the case of a sulehnama decree.