JUDGMENT

Mukerji, Ag. C.J.

1. This appeal has been referred to us by a Bench of two learned Judges of this Court because the point involved is of importance and it was thought necessary that the law on the point should be laid down by a Full Bench.

2. The facts of the case will have to be stated at some length in order to appreciate the point or points of law that arise.

3. The Oudh Commercial Bank obtained a decree for sale in Suit No. 50 of 1913 of the Court of the Subordinate Judge of Fyzabad against Riasat Husain and Saleha Bibi. The suit was based on a mortgage bond. The final decree in the suit was passed on 16th December 1915. Execution was taken out and Khairunnissa Bibi, who is the appellant before us, was impleaded as an heir to one of the deceased judgment-debtors. She however it appears claimed some of the property mortgaged in her own right and therefore she instituted a suit, being Suit No. 383 of 1923, in the Court of the Subordinate Judge at Azamgarh, to obtain a declaration that she was not bound by the decree No. 50 of 1913 obtained in the Court of the Subordinate Judge of Fyzabad by the Oudh Commercial Bank. Her suit was dismissed on 18th April 19,25 and she filed a first appeal, being Appeal No. 313 of 1925, in this Court. The Oudh Commercial Bank having taken out execution of the decree No. 50 of 1913 obtained by it, Khairunnissa Bibi applied to this Court for an order of injunction restraining the Oudh Commercial Bank from executing its decree. In the course of the consideration of the applications. It transpired that a part of the decree obtained by the Oudh Commercial Bank did not carry any interest and it was pointed out to the Court, on behalf of the bank, that if the execution of the decree was stayed, the bank would suffer loss of interest. The amount which did not carry interest was about Rs. 27,000 and the learned Judges of this Court calculated that in the course of the average period of the pendency of a first appeal the Oudh Bank would lose a sum of Rs. 6,000 in interest, the sum being calculated at 6 per cent per annum. The plaintiff was told that her application for stay of execution would be granted if she executed a security bond in a sum not less than Rs. 6,000 to secure the loss of interest. Such a security bond was furnished on 14th May 1926 and the execution of the decree No. 50 of 1913 was stayed, by issue of a temporary injunction.

4. Khairunnissa Bibi's appeal (383 of 1923) was eventually dismissed by this Court. The bank brought the property, as to which it had obtained an order for sale, to sell and realize a large amount of money. Thereafter it proceeded to execute the decree of Appeal No. 383 of 1923 with respect to Rs. 6,000 by sale of the property which Khairunnissa Bibi had hypothecated under the security bond of 14th May 1926. An objection was taken by Khairunnissa Bibi that it was not open to the bank to bring the property to sale without a suit. The objection was dismissed and she has filed the appeal now before us. The question to be determined is whether for the realization of the security given on 14th May 1926 by Khairunnissa Bibi, the Oudh Commercial Bank should have recourse to a suit or whether it can execute any decree or order, and if so, what decree or order. Before the learned Judges hearing the appeal as a Division Bench several rulings were cited and we have to consider the bearing of those rulings on the question before us.

5. The rulings that were cited before the learned Judges related mostly to securities furnished by third parties as sureties, under the CPC of 1908. To start with we have got the case of Mukta Prasad v. Mahadeo Prasad (19161 38 All 327. In this case the person who offered security was one Mahadeo Prasad. He not only made himself personally liable but also hypothecated some property. The learned Judges of this Court (Piggott and Walsh, JJ.,) treated the case as if if there was no hypothecation of property by way of security, but only a personal li