Revision against order of dismissal of an application.

This is a petition by one Ramanathan Chettiar, the plaintiffdecree-holder in O.S.No. 51 of 1948, on the file of the Subordinate Judge’s Court Sivaganga, for revising and setting aside the order of the Subordinate Judge dismissing I.A. No. 334 of 1951 in O.S. No. 51 of 1948. The petition was filed by him under Order 34, rule 6 and sections 52(2) and 151, Civil Procedure Code, for passing a personal decree against the lega1 representatives of the mortgagor. The learned Subordinate Judge held that the hypothecated properties had not been exhausted and that, therefore, there was no reason for passing a personal decree regarding the properties of the original mortgagor in the possession of his legal representatives. The allegation in the petition was that there were non-mortgaged properties of the mortgagor in the hands of the legal representatives, that the balance of Rs. 18,000, or so, due to the petitioner under the mortgage decree, could be easily recovered from there properties, and that the remaining items of the hypo heca referred to by the lower Court would yield nothing, as they had been taken over by the Government and not a pie had been paid by Government so far as compensation. Mr. Vaidyanatha Iyer, the learned counsel for the petitioner, also tells me now that the petitioner is willing to give up his remedies against the hypo heca completely, and proceed only against the assets of the mortgagor in the hands of the legal representatives, and that therefore, he might be given a personal decree against these legal representatives so far as the assets of the original mortgagor in their hands are concerned.

Mr. K.S. Ramamurthy, for the legal representatives, raises a preliminary objection that this revision petition will not lie, as an appeal will lie against the lower Court’s order dismissing the petition under Order 34, rule 6 of the Civil Procedure Code. He relied upon the ruling of Happel, J., in Shanmugham alias Muthukaruppan, In re1, and on the ruling of a Bench of the Allahabad High Court in Muhammad Iltifat Husain v. Alim-un-nissa Bibi2, and a ruling of a Bench of the Nagpur High Court in Ratanlal Harlalji v. Mt. Sagarbai3. All these rulings make it clear that where an application under Order 34, rule 6, Civil Procedure Code, has been dismissed, the order of dismissal will be a decree, and a regular appeal will lie. Mr. Vaidyanatha Iyer could cite no ruling to the contrary. He wanted to distinguish those rulings by urging three alleged distinguishing factors. The fact was that it was not the original mortgagor against whom a personal decree was being asked for under Order 34, rule 6, Civil Procedure Code, in this care but his legal representatives. This cannot, in my opinion, make any difference regarding the matter under consideration now. The distinction is broadly between hypothecated properties and other properties of the mortgagor. Regarding the other properties of the mortgagor, a personal decree must be got before they can be proceeded against, and the hypothecated properties must have been exhausted; or if they are worthless, as alleged now, they must be given up before a personal decree can be got. When a Court, before which an application under Order 34, rule 6, Civil Procedure Code, is filed, rejects the application, for whatever reason, right or wrong the remedy is by way of a regula appeal, and not by way of a Civil Revision Petition. The second distinguishing factor urged by Mr. Vaidyanatha Iyer was that the properties sought to be proceeded against in this case are properties of the mortgagor in the hands of the legal representatives, and that, therefore, section 52(2), Civil Procedure Code, was also put in but that the lower Court over-looked it. I do not think that it makes any difference. The point for consideration is whether the property proceeded against is hypothecated property or other property. If the properties proceeded against, as the properties of the mortgagor are not hypothecated