( 1 ) THIS is a decree-holders appeal and it raises a highly interesting point.

( 2 ) ON 17th January 1942, a final decree for sale under Order 34, Rule 5, Civil P. C. , was passed in favour of the appellant. On 22nd July 1947, the Collector passed an order granting a self-liquidating mortgage under Section 17, Proviso 3, to the appellant for a period of 20 years in part satisfaction of the decree. The amount due under the final decree was Rs. 2048-15-0, whereas the amount for which this mortgage was granted was only Rs. 1446-4-0 (not Rs. 1464-4-0 as mentioned in the order of the execution court) in respect only of protected land. We do not know whether such land only was covered by the mortgage or whether it included any other class of property also.

( 3 ) ON 3lst August 1948, the appellant filed an application for execution of the decree in respect of the unpaid portion of the money as against some other properties of the judgment-debtor. He alleged that a part of the property on which the self-liquidating mortgage had been granted had gone out of his possession, and this may have been the reason for his seeking to recover the remaining amount by execution. This allegation of the decree-holder was found to be false, and we are no more concerned with it.

( 4 ) THE judgment-debtor objected to the application for execution on the grounds that the decree-holder had no right to make such an application after he had obtained the self-liquidating mortgage referred to above and that he had no right to proceed against properties other than that covered by that mortgage. Both the Courts below allowed this objection, and the decree-holder has challenged the order of the lower appellate Court by this appeal.

( 5 ) THE Courts below relied on the provisions of Section 21, U. P. Debt Redemption Act. This section provides:

"notwithstanding anything contained in Rule 6 or Rule 8-A of Order 34 of the Schedule 1, Civil p. C. 1908, where in a suit based on a loan secured by a first mortgage a decree for sale has been executed and the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due to the plaintiff or to the defendant, as the case may be, no decree shall be passed for the balance due to such plaintiff or defendant, as the case may be, and if any decree for such balance has been passed before the commencement of this Act, it shall be deemed to have been satisfied. "

Learned counsel for the appellant has challenged the orders of the Courts below on the ground that the above section did not apply in the present case for two reasons :(1) that the decree for sale in this case had not been executed, and (2) that the mortgaged property not having been actually sold it could not be said that the proceeds were insufficient to pay the amount due.

( 6 ) HE contends that unless both of these two conditions were present there was ho bar to the mortgagee obtaining a decree for the balance of the amount or, where he had obtained such a decree, to his executing the same in the manner prescribed by law. The question to be determined, therefore, is whether in the present case it can be said that the decree for sale had been executed and the mortgaged property had been sold, the proceeds being found insufficient to satisfy the full amount of the decree.

( 7 ) THERE is no doubt a method prescribed in the Code for execution of a decree on a mortgage. That method, it is true, was not followed in the present case. Another course which is prescribed in the U. P. Debt Redemption Act was, however, pursued, and it took the form of granting a self-liquidating mortgage to the appellant. The question is whether this procedure amounted in law to an execution of the mortgage decree. Section 16 of the U. P. Debt Redemption Act prescribes the method for execution of a decree against a land of the agriculturist. Under this section the Government framed a rule to the following effect :

"the execution of all decrees to