The mortgagee could claim a personal remedy under Rule 6 of Order 34, and the release of one of the mortgagors did not affect the mortgagee's right to a personal decree.

JUDGMENT

1. This appeal is directed against the dismissal of an application under Rule 6 of Order 34 of the CPC of 1908. The facts material for the decision of the questions raised before us really lie in a small compass and may be briefly recited.

2. One Ananda Chandra Bose died leaving a widow and seven sons. Three of these sons died childless with the result that their interest in the ancestral estate was inherited by their mother. The position consequently was that the widow became entitled to a 3/7th share and the remaining 4/7th share was divided equally amongst the four sons. On the 16th April 1903, two of the sons executed a mortgage in favour of the appellant to secure a loan of Rs. 15,000. There were six properties given by way of security, and what was hypothecated was the 2/7th share of the two mortgagors in the properties mentioned. On the 19th April 1905 the widow and three of the sons executed another mortgage in favour of the appellant to secure a loan of 10,000. Two of these sons were executants of the earlier mortgage. There were twelve properties given by way of security, and these included the six covered by the previous mortgage. The position consequently was that a 6/7th share in the hypothecated proper, ties was given by way of security, while the 2/7th share of the two sons in six out of the twelve properties was covered by the earlier mortgage. On the 14th May 1915 a preliminary decree was made on the earlier mortgage; this decree was made final on the 22nd January, 1916. On the 14th February, 1918, a preliminary decree was made in the trial Court on the basis of the later mortgage. The decree-holder preferred an appeal to this Court with the result that on the 8th May, 1919, this Court increased the amount recoverable by the mortgagee from the mortgagor. This order was subsequently carried out by the Subordinate Judge in the manner following, namely, a final decree was made by him on the 30th August, 1919, on the basis of the decree made by this Court. In the interval between the date of the preliminary decree by the trial Court and the final decree made by that Court pursuant to the decree of the High Court, some of the properties had been sold. Two properties were sold under Regulation VIII of 1819 and in execution on the 15th May 1918 and the 22nd March 1919, respectively. The surplus sale-proceeds were applied in reduction of the sums due on the preliminary decrees under the two mortgages. The result was that when the final decree on the later mortgage was made on the 30th August, 1919, it was found that Rs. 7,353-2 was still due Since then, other properties have been sold for arrears of rent, for arrears of revenue, and in execution of the mortgage decrees. The decree-holder maintains that the sale-proceeds so realised have not been sufficient to satisfy his claim, and he has consequently applied for a personal decree under Rule 6 of Order 34 of the Civil Procedure Code. The application has been dismissed by the Subordinate Judge on the ground that the decree-holder has not complied with the requirements of its provisions.

3. Order 34, Rule 6, is in the following terms : "where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such amount." It is plain that the expression "any such sale" has reference to Rule 5, Sub-rule (2), which ordains that if payment is not made as directed by the preliminary decree, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Rule 4. Consequently before the plaintiff can invoke the aid of the provisions of Rule 6, he must establish that the mortgaged properties have been sold as contemplated by Sub-rule 2 of Rule 5. If this i