( 1 ) THIS second appeal is filed by the original defendants 1 to 4. The respondents-original plaintiffs filed a suit and a decree was passed in their favour and the defendants were ordered to pay Rs. 6 0 and odd to the plaintiffs. Certain instalments were also awarded. It was further decreed that the decree was to be executed only against the suit property and not any other property belonging to the deceased in the hands of the defendants.

( 2 ) IN the plaint it was mentioned that the suit property was the subject matter of a charge as security for money.

( 3 ) IN appeal the learned appellate Judge thought that the suit was for the sale of the property charged and that therefore a preliminary decree should be passed. He therefore held that in a suit where a preliminary decree is to be passed for the sale of the property charged no instalments can be granted. He therefore set aside the order relating to instalments. He also awarded interest from the date of the suit till the date of realization at the rate of 3 per cent. per annum.

( 4 ) THIS order is now challenged in second appeal and three contentions are urged (1) the appellate Court was wrong in holding that a preliminary decree should be passed for the sale of the charged property (2) it erred in setting aside the order relating to instalments and (3) it erred in awarding interest when after exercise of discretion the trial Court declined to award interest. There is no merit in any of these contentions.

( 5 ) IF we look at the plaint it is a plaint praying for a decree for Rs. 6 0 and odd to be recovered from all the estate of the deceased and also for the sale of the suit property if the money was not recovered. The plaint therefore clearly prayed for the sale of the charged property and therefore comes within the purview of Order 34 C. P. C. in such a case a preliminary decree should be passed under Order 34 rule 4 and a final decree should be passed as provided in Order 34 rule 5 and Order 34 rule 6. Order 34 rule 6 reads as follows :-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 ) IF the sale proceeds are insufficient to pay the amount due to the plaintiff the Court can pass a decree for the balance to be recoverable from the defendant otherwise than out of the property sold. Instead of following this procedure the plaintiff reversed the order but in effect he prayed that the property charged be sold and therefore a preliminary decree is necessary under Order 34 rule 4. In such a case no instalments can be granted as held by me in Prabhudas Uttamdas v. Lavar Bai Uji wd/o Lavar Godad Atmaram and others 1962 (3) G. L. R. 919.

( 7 ) AS regards the contention regarding interest section 34 ox the Civil Procedure Code provides that in so far as a decree is for the payment of money the Court may in the decree order interest at such rate as the Court deems reasonable to be paid on the principal sum from the date of the suit to the date of the decree The Court has therefore a discretion but in the case of a suit for the sale of properly mortgaged or charged an account has to be taken of what was due to the plaintiff at the date of such decree as provided in Order 34 rule 2 and Order 34 rule 4. The Court has to take an account of the principal and interest on the mortgage and the amount due to the plaintiff on the date of the decree. The Court has therefore no discretion on the matter of taking accounts of the mortgage. It is however contended that sec. 34 overrides Order 34 and that where sec. 34 gives a discretion to the Court that discretion cannot be taken away by Order 34. But there is no inconsistency between the two. Section 34 gives a discretion to the Court in cases where the Court passes a pure mone