The main legal point established in the judgment is that the provisions of Order XXXIV, Rule 14, Civil Procedure Code do not apply when the decree sought to be executed is an ordinary money decree and the mortgage is not enforceable.

Venkatasubba Rao, J.

1. This case raises a point of some novelty. The respondent filed a suit to enforce a mortgage. He impleaded as defendants Gowriambal Achi, the present appellant, her son and granason. I extract the following passage from the judgment passed in that suit in April 1924. It appears to me that as a suit to enforce a mortgage, the suit must fail. Gowriambal Achi has no title to the property. The properties were left by Will absolutely to Gowriambals mother, It was recited, that on the latters death Gowriambal was to succeed to any of the properties which her mother had not alienated. Gowriambals mother is still alive, and Gowriambal may never succeed to any of this property. I do not see how Gowriambal by her deed can create any charge on the property." On this reasoning, Mr Stodart, the District Judge, passed the following decree I give the plaintiff a decree for the sum claimed Rs. 6,500 with simple interest at the contract rate, namely, 12 per cent, on Rs. 6, 168, This is a simple money decree against the 1st defendant Gowriambal alone. The suit against the 2nd and 3rd defendants is wholly dismissed.

2. We are not now called to construe the Will referred to in the passage above, nor is it a part of the record before us. Nor are we at present concerned with the question whether the judgment is right or not; for the plaintiff submitted to it and it became final between the parties.

3. Subsequent to the passing of the decree, Gowriambal Achis mother died and the plaintiff assumed (whether rightly or wrongly, it is needless to enquire) that she became absolutely entitled to the properties covered by the mortgage. In that view, he applied to execute the money decree passed in his favour by attachment and sale of those properties. The defendant Gowriambal Achi) opposed the plaintiffs application, urging that it contravened the provisions of Order XXXIV, Rule 14, Civil Procedure Code, and that the plaintiffs remedy was by way of a regular suit. This objection was overruled and the plaintiff was allowed to execute his decree. The order dated 10th November, 1926, then made on Gowriambal Achis petition requesting that the plaintiffs application might be rejected, may be reproduced. The decree is very clear. It was held that the mortgage was not enforceable. As the mortgagor, i. e., the judgment-debtor, had no right to the property mortgaged, only a simple money-decree was passed. In execution of this simple money-decree, the properties which were originally mortgaged and to which the judgment debtor became entitled by inheritance subsequently are attached and are brought to sale. Order XXXIV, Rule 14 has no application. There is no mortgage subsisting and the claim did not arise out of the mortgage. Decree-holder need not file a fresh suit. Petition is dismissed with costs.

4. The plaintiff now conceiving that a higher right accrued to him and that he had been mistaken in applying for attachment, presented a petition to the Court stating that his execution petition was not pressed Thereupon the Judge recording that the petition was not pressed, made an (sic) dismissing it. This happened on the 15th January, 1927.

5. The next step taken by the plaintiff is the one with which we are concerned. He presented execution petition No. 11 of 27 on which the order under appeal was made. In column 7 of that petition, the plaintiff gives the reason for his abandoning his previous execution application. But the said execution petition did not correctly set out the charge which this decree-holder had obtained over the immoveable properties mentioned hereunder after the death of judgment-debtors (1st defendants) mother by virtue of s 43 of the Transfer of Property Act. So the petition was not continued.

6. He then prays in column 10 that the amount due to him under the money decree may be realised by the sale of the judgment-debtors immoveable property". He adds a further prayer, which in truth is the same as the first, in differ