SABYASACHI MUKHARJI, J.

( 1 ) THE plaintiff in the instant case had filed this suit against the defendants on the 2nd of July, 1974, for a declaration of charge in respect of two immoveable properties belonging to the defendants and for a decree under Order 34, Rule 5-A of the Code of Civil Procedure. A preliminary mortgage decree was passed on the 7th March, 1975. Thereafter, 0s the defendants failed to pay the dues in accordance with the preliminary decree an application was made. From the said preliminary decree an appeal was preferred end is still pending. Thereafter, as the defendants did not pay the decretal dues, an application was made for a final decree. I passed the final decree on the 16th December, 1975, An appeal fro the said final decree is pending. These shortly are facts relevant for the purpose of this application. The petitioner thereafter made an application to the court of appeal for interim stay or decree pending the hearing of the appeal from the final decree. No order was made on that application without prejudice to the rights of the petitioner to make an application under Order 41, Rule 6 if the petitioner was otherwise entitled to under the law. This is an application in which the petitioner is asking for various reliefs, inter alia, that the operation of the final decree passed by me be stayed until the final disposal of the appeal. It was contended that this application was under the provisions of Sub-rule (2) of Rule 6 of Order 41 of the Code of Civil Procedure. Sub-rule (2) of Rule 6 of Order 41 deals with the case where an order has been made for sale of immoveable property in execution of a decree. The question is whether an order has been made for sale of immoveable property in execution of a decree. Reading the section as it is I am unable to accept the contention that a final decree in a mortgage suit is an order for sale of immoveable property in execution of the decree. In order to be executable there must be a decree which can be executed. The preliminary decree is not capable of execution as such. There can be no execution until a final decree is passed. This position appears to me clear from the provisions of Sub-rule (2) of Rule 6 of Order 41. This view in my opinion is also supported by the decision of a Full Bench of the Allahabad High Court in the case of Sat Parkesh v. Bahal Rai, AIR 1931 All 386 at page 387. In the case of Madan Theatres Ltd. v. Dinshaw and Co. , AIR 1945 PC 152 the Judicial Committee also was of the same view. This question was considered also by a Bench decision of this Court in the case of Jivandas Khimji v. Dindoyal Shah, (1946) 50 Cal WN 486 where the Division Bench observed that a preliminary decree in a mortgage suit was not a decree for payment of money and such a decree, in default of payment by the judgment-debtor as directed thereunder, could not be executed by the attachment and sale of the property of the judgment-debtor. The sole remedy of the decree-holder in such circumstances was to apply for a final decree under Order 34, Rule 6 of the Code of Civil Procedure. If a preliminary decree in mortgage suit was not a decree for payment of money, then the order passed after the preliminary decree could not in my opinion be considered to be an order in execution of a decree.

( 2 ) COUNSEL for the petitioner, however, contended that in view of certain observations of the judicial committee it should be considered that a final decree in a mortgage suit was really an order in execution of the decree. In order to appreciate this contention it would be relevant to refer to Sections 88 and 89 of the Transfer of Property Act as it stood prior to its amendment, by Transfer of Property (Amendment Supplementary) Act 1929. Sections 88 and 89 were as follows : "88. In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in the first and second paragraphs of Section 86, and also ordering that, in default of the defendant p

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