SITANATH SHAH BANIK Vs. MADAN MOHAN DAS

JUDGEMENT

(1.) The faots are shortly these. The plaintiff decree-holder instituted a suit to enforce a mortgage-bond. A decree was passed for the sale of the mortgaged property and there was a further direction that if the whole amount was not realised by the sale of the mortgaged property for the rest of the claim, if legally realisable, the defendant No. 1 would be liable.

(2.) It appears that after this decree was obtained and before the mortgaged properties could be sold, a third party brought a suit for, a declaration that the mortgaged property could not be sold in execution of the decree and succeeded in getting such a declaration in the presence of the decree-holder and the judgment-debtor. There upon the decree-holder applied to proceed against the other properties of, the judgment-debtor, but the Court asked him to make an application under Order XXXIV, Rule 6. He made such an application, but he was absent when it was taken up for disposal and it was rejected. The decree-holder afterwards made the present application under Order XXXIV, Rule 6, and this application has given rise to this appeal, the judgment debtor being the appellant before us.

(3.) The points raised are, first, that the preliminary decree to which I have already referred was a composite decree which, enabled the decree-bolder to proceed against, the other properties of the judgment-debtor without a fresh decree obtained under Order XXXIV, Rule 6, and that, therefore, he is not entitled to a fresh decree, secondly, it is argued that the previous application for a decree under Order XXXIV, Rule 6, being rejected, the decree-holder cannot, make a second application for such a decree.