MAKHAN SAHU Vs. MTBIBI KAMRUN NISSA

JUDGEMENT

(1.) This is an appeal against an order refusing a personal decree under Order 34, Rule 6, Civil P.C. The plaintiffs obtained a preliminary mortgage decree on 15th June 1934 on the foot of three mortgages. The decree was made final on 16th December 1934. The first two mortgages were in respect of the same property and the third was in respect of two other properties. Between the preliminary decree and the final decree, all these properties excepting one covered by the third mortgage were sold in execution of a prior mortgage decree.

(2.) It is not disputed that there were no surplus proceeds of that sale left. The plaintiffs executed their decree against the remaining property not affected by the prior mortgage decree and, we are told, it was sold for Rs. 600 only. As this amount was far short of the decretal amount, the plaintiffs made an application under Order 34, Rule 6. The objection taken on behalf of the defendants was that under the terms of Order 34, Rule 6, it was incumbent upon the plaintiffs to exhaust the mortgaged properties before they could apply under that Rule. This objection has been accepted by the learned Subordinate Judge who has rejected the application. Hence this appeal.

(3.) The question for decision in this appeal turns on the interpretation of Order 34, Rule 6, Civil P.C. Apart from any decisions it seems to me that it is quite plain upon a true reading of this Rule that the conditions under which a personal decree may be asked for are equally satisfied if the properties directed by the mortgage decree to be sold are no longer available. It will be most unreasonable to hold that the plaintiffs before they can apply under Order 34, Rule 6, must go through the farce of selling the mortgaged properties, though the properties have ceased to be available to them.