A decree-holder is not entitled to apply for a personal decree under Order 34, Rule 6, of the Code of Civil procedure unless he has first sought his remedy under Sec.14 of the Bihar Land Reforms Act and made a claim for the satisfaction of the amount due to him from the compensation amount payable to the respondent-judgment-debtors.

1. This appeal is presented on behalf of the decree-holder against the order of the Additional Subordinate Judge of Patna, dated the 20th August, 1957, refusing to grant a decree under Order 34, Rule 6, of the Code of Civil Procedure. It appears that on the 9th February, 1945, the respondents executed a mortgage bond for a sum of Rs. 15,000.00 in favour of the appellant with regard to certain milkiat properties. The appellant brought a mortgage suit, No. 117/93 of 1950, for enforcing the mortgage. On the 4th February, 1954, a preliminary decree was granted by the learned Subordinate Judge for sale of the mortgaged properties. A final decree was passed on the 15th September, 1955.

While the execution ease was pending there was a notification under Sec.3 of the Bihar Land Reforms Act, dated the 1st January 1956, by which all the milkiat properties, which were the subject-matter of the mortgage became vested in the State Government. On the 28th May, 1956, the execution case was dismissed on account of the bar imposed by Sec. 4(d) of the Bihar Land Reforms Act. Subsequently the decree-holder filed an application to the court for grant of a personal decree under Order 34, Rule 6 of the Code of Civil Procedure. The application was dismissed by the Additional Subordinate Judge on the 20th August, 1957. This order is the subject-matter of the appeal which has been presented in the High Court.

2. When the matter was heard before the Division Bench the question arose whether the mortgagee-decree-holder is entitled to a personal decree without first complying with the provisions of Rules 4 and 5 of Order 34 of the Code of Civil Procedure. It was argued before the learned Judges of the Division Bench on behalf of the respondent-judgment-debtors that the mortgage security has been substituted by the compensation available to the intermediary under the Bihar Land Reforms Act and, therefore, the decree-holder is not entitled to a personal decree under Order 34, Rule 6, of the Code of Civil Procedure, until compensation money is utilised for the satisfaction of the mortgage debt, either wholly or in part. On behalf of the decree-holder appellant the contention was put forward that the security was not available and, therefore, the procedure of complying with Rule 5 of Order 34 was an idle formality. In view of the conflict of authorities on this point, the learned Judges of the Division Bench have referred the matter for being decided by a Full Bench.

3. In the order of reference the question for decision by the Full Bench has been formulated as follows:

"If the mortgage security is not available, say, for instance, it was destroyed or compulsorily sold, or, as is the present case, vested in the State, should the decree-holder comply with the provisions of Rule 5 of Order 34 of the Civil Procedure Code before applying for a personal judgment under Rule 6 of Order 34 of the Code?

4. After hearing learned counsel for both the parties we think that the question referred to the Full Bench should be reframed in the following manner so as to bring out the real point in controversy between the parties:

"Whether in the circumstances, of this case the decree-holder should proceed first under Sec.14 of the Bihar Land Reforms Act before applying in the civil court for a personal judgment under Order 34, Rule 6, of the Code of Civil Procedure?"

5. Our task in this case has been simplified to a great extent because the precise point arising in the present case has been the subject-matter of consideration by the Supreme Court in a recent case, Krishna Prasad V/s. Smt. Gouri Kumari Devi, (Civii Appeal No. 352 of 1959, D/- 5-3-1962 (SC)). It should be noticed that the material fact in the present case is that all the milkiat properties which formed the subject matter of the mortgage transaction have been notified under Sec.3 of the Bihar Land Reforms Act and they have vested in the State Government under the provisions of that Act. Similarly, in the