C.M. Lodha, J.
1. This second appeal by the decree holders raises an important question of law which arises under the following circumstances :--
The appellants obtained a preliminary decree for recovery of Rs. 2500/- by sale of the mortgaged house under Order XXXIV, Rule 4. Civil P. C. on 30-7-1959 from the Court of Civil Judge. Jodhpur. Three months' time was granted to the defendant for making the payment of the decretal amount. It was further provided in the preliminary decree that in case the sale proceeds of the mortgaged property fell short of the decretal amount, the plaintiffs would be entitled to make an application for a personal decree which would be disposed according to law. The judgment debtor having not paid the decretal amount 'within the period fixed in the preliminary decree, final decree was passed on 15-2-1960 in pursuance of 'which the mortgaged house was put to auction and sold for Rs. 1208/-. Consequently, the plaintiffs presented an application on 21-3-1961 under Order XXXIV, Rule 6 Civil P. C. for a personal decree for the balance of the decretal amount.
This application was resisted by the defendant on the ground that the remedy for personal decree had become barred on the date the suit was instituted. It may be mentioned here that the mortgage dood was of 27-5-1949 and the suit was filed after more than 6 years on 29-4-1959 and was thus admittedly barred by limitation for a personal decree under Article 116 of the Limitation Act of 1908, which was then in force. The learned Civil Judge, Jodhpur upheld the defendant's objection and dismissed the application. On appeal by the plaintiff the decision of the learned Civil Judge. Jodhpur was upheld by the District Judge, Jodhpur. Consequently, the plaintiffs (decree holders) have come in second appeal to this Court.
2. The opposite party has not put in appearance in spite of service and consequently I have heard this appeal ex parte.
3. Learned counsel for the appellants has, however, placed the case very fairly and has brought to my notice the authorities on either side.
4. The only question for decisionis whether the courts below were right in holding that since the remedy for a personal decree was barred by time, on the date of the institution of the suit, the plaintiffs were not entitled to get such a relief even though a direction was contained in the preliminary decree that they would be entitled to file an application for realisation of the balance of the decretal amount, otherwise than out of the property sold?
5. Before I embark upon the consideration of the authorities on the point, it would be proper to reproduce Order XXXIV, Rule 6 Civil P. C. which runs as under :--
'6. Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.'
6. Learned counsel for the appellant urged that while dealing with the application under Order XXXIV. Rule 6 C. P. C. the Court was not entitled to go behind the preliminary decree dated 30-7-1959 by which a right had been conferred on the plaintiffs in express terms to apply for a personal decree in case the sale proceeds of the mortgaged property were found insufficient for discharge of the decretal debt. In support of his contention he has placed reliance on Ramnath v. Nageshur Singh. AIR 1930 Oudh 378 (FB) and Ram Bilas v. Sripal Singh, AIR 1935 Oudh 11. In the first case Wazir Hasan C. J. who wrote the leading judgment representing the majority view (Srivastava J. dissenting) held that,
'Once the right or the liberty to do a certain act is established and declared by a decree of Court in favour of a party his adversary cannot be permitted to thwart and stultify that right by raising objections which he might and ought to have raised or which if raised have been negatived by the Court during the progress of the litigation in which the decree was made.'
Pursuing this line of reasoning it was observed that a prayer for the relief of a personal decree to cover the deficiency in the sale proceeds when accepted is as much a part of the decree as acceptance of the other prayer relating to the defendant's obligation to pay to the plaintiff the amount of money declared due to the plaintiff on or before a specified day, and that if such payment is not made on or before the specified day, the mortgaged property or a sufficient part thereof shall be sold. It was further held that this preliminary decree having not been appealed from became final and could not be assailed in proceedings under Order XXXIV, Rule 6 C. P. C.. and that the words 'legally recoverable' occurring in Order XXXIV. Rule 6 C. P. C. will be amply satisfied by showing that the preliminary decree has already declared the plaintiffs' right for a personal decree under Order XXXIV, Rule 6, Civil P. C.
7. In AIR 1935 Oudh. 11 the application under Order XXXIV, Rule 6 C. P. C. was rejected by the courts below on the ground that the appellant's personal remedy against the mortgagor was barred by time. Following the view taken in AIR 1930 Oudh. 378 (FB), it was observed that a provision like this namely that the plaintiff shall be at liberty to apply for a personal decree for the amount of the balance, in a decree for sale constitutes adjudication which is detrimental to the defendant and which must be regarded as awarding the plaintiff a personal decree in the event of the proceedings of the sale being insufficient. Consequently the appeal was allowed, and a personal decree was granted under Order XXXIV, Rule 6 C. P. C. These authorities undoubtedly support the view propounded by the learned counsel.
8. With greatest respect to the learned Judges of the Oudh Chief Court the words 'legally recoverable' used in Order XXXIV. Rule 6 C. P. C. have also to be given due importance. These words mean by way of illustration that the balance must be a balance which the mortgagee is not precluded by the terms of the mortgage from realising otherwise than out of the property sold or a balance the recovery of which is not barred. The object of Order XXXIV, Rule 6 C P. C. is to obviate the necessity of a fresh suit to recover the balance even if the mortgagee has reserved his right to do so with the leave of the court under Order 2 Rule 2 C. P. C. Every mortgage does not necessarily import a personal obligation to repay. One of the essential conditions of Order XXXIV, Rule 6 C. P. C. is that the balance is legally recoverable, that is, recoverable in law. This condition contemplates that such a right is provided under the contract and the same is not barred by time on the date when the mortgage suit is instituted.
9. In Gauri Kumari v. Krishna Prasad, AIR 1957 Pat 575, it was held that an application under Order XXXIV, Rule 6 C. P. C. is a step in the suit and not in the execution arising out of the decree passed in that suit. It was further held that a court will be acting irregularly if in contravention of Order XXXIV. Rule 6 C. P. C. it provides in the decree for sale itself that the mortgagee may in case the sale amount is not sufficient to cover the entire mortgage dues proceed against the mortgagor personally for the balance. But such an irregularity cannot make the composite decree void either in part or whole. That irregularity can at best result in making the decree as to personal liability only voidable.
10. 'In Musaheb Zaman Khan v. Inayatullah, (1892) ILR 14 All 513 it was held that where there is nothing to show a contrary intention of the parties every mortgage carries with it a personal liability to pay the money advanced; but a mortgagee must sue for his remedy against the property first. In so doing it is immaterial whether or not he prays in his plaint for relief over against non-hypothecated property.' It was further held that 'unless in exceptional cases he can obtain such relief only under the provisions of Section 90 of the Transfer of Property Act, and if such relief is refused the refusal will not bar a subsequent application under Section 90.'
11. Again in Kidar Kath v-Saraiuddin AIR 1946 Lah 97 (FB) Achhru Ram J., speaking for the Court observed as follows:--
'The mortgagee is entitled to a personal decree for recovery of such interest even though he has no subsisting right to get a personal decree for the recovery of the principal. It is hardly necessary for me to add that this is subject to the proviso that the mortgagee is not entitled to any relief in respect of interest falling due after the mortgage debt itself has become irrecoverable, because in that event his suit for sale itself will be liable to dismissal as barred by time, and no occasion will arise for him to apply for a personal decree under Order 34, Rule 6, Civil P. C.'
12. Lastly, in Shankar Bhatta v. Shankar Upadhya, AIR 1949 Mad 1 (FB) the suit on the mortgage of 1931 having been brought in 1941, the remedy by virtue of recourse to the personal covenant was barred. Clause 5 of the decree provided that if the money realised by the sale of the hypotheca should not be sufficient for payment in full of the amount payable to the mortgagee, he, the mortgagee, should be at liberty, where such remedy is open to him under the terms of the mortgage and is not barred by any law for the time being in force, to apply for a personal decree against the defendants for the amount of the balance. It was held that since the remedy under the personal covenant is barred the mortgagee has nothing by reference to the mortgage deed, which can avail him to recover any balance, and Clause 5 gave the mortgagee only a remedy, which is not barred. Consequently, it was held that the appellant was not under any obligation regarding the personal covenant contained in the mortgage deed. I respectfully agree with the view expressed by the Allahabad and Madras High Courts.
13. In the present case as already stated above the preliminary decree only provided that in case the sale proceeds of; the mortgaged property were found insufficient for discharge of the decretal amount, the decree-holders would be entitled to make an application for a personal decree, which would be decided in accordance with law. Thus even from language of the decree itself it cannot be said that there was a final adjudication as to the right of the plaintiff to obtain a personal decree for the balance. Apart from that it is amply clear that the remedy by way of personal decree was admittedly barred by time on the date of the suit, and, therefore, the balance was not legally recoverable, otherwise than out of the personal property sold.
14. In this view of the matter there is no force in this appeal and it is hereby dismissed. Since the respondent has not appeared to contest the appeal, there will be no order as to costs.