In the case of a mortgage, the original contract must be enforced, and the claim should be executed in terms of the mortgage. The Civil Court's discretion to pass a decree is limited once the Deputy Commissioner issues a certificate under Section 13(3) of the Relief of Indebtedness Act.

Bose, J—The main contention raised in this appeal revives a matter which has been settled-by three Judges of this Court in three separate cases regarding the interpretation of certain, sections of the Relief of Indebtedness Act. The facts are as follows.

2. The appeal is by the judgment-debtor; He executed a mortgage on 2-11-1926 in favour of the decree-holder, respondent. The decree-holder filed civil Suit No. 862-A of 1940 on the basia of this mortgage in the Civil Court. On 15-10-1940, while the suit was pending, the judgment-debtor (mortgagor) applied to the Debt Belief Court for a scheme. The claim of Rs. 1340-4-0 made in the Civil Court was scaled down to Rs. 1226-0-0 by the Debt Belief Court on 26-11-1941. This sum was made payable in 25 instalments, the first 24 being of Rs. 50-0-0 each and the last of Rs. 260-0-0.

Two instalments were defaulted, an accordingly the decree-holder applied to the Deputy Commissioner under Section 18(3), Relief of Indebtedness Act for a certificate. The certificate was granted on l2-9-l94l. Accordingly, the decree holder filed' the application out of which this appeal arises seeking execution and asking: for possession of the property. The application, was made on 11-10-1944.

3. The judgment-debtor objected that the decree-holder was not entitled to possession. According to him, the effect of the Debt Belief Court's order was to wipe out the original contract and to leave in its place what might be termed a simple money decree payable by instalments. When the Deputy Commissioner issued; the certificate under Section 13(3) of the Act all that; happened was that a sort of eligibility clause came into force and the whole amount payable under this simple money decree became recoverable at once. The contract, however was not revived. Therefore, the lower Court had no-power to execute this decree as if it was a mortgage decree and place the decree-holder in possession.

4. This contention was overruled by the lower Court, and the learned Judge directed the decree-holder to be placed in possession. An appeal to the lower appellate Court against this failed, and accordingly a second appeal was filed here. This is the appeal I am now hearing. An order for stay was obtained on 24-4-1945, and shortly afterwards, on 1-5-1945, the judgment-debtor deposited the whole of the balance due under the Debt Belief Court's order into Court. It is contended that this completely satisfies the decree-holder's claim, and accordingly the order directing possession to be delivered to the decree. holder should be reversed.

5. The question whether the Civil Courts have power to execute an order of a Debt Relief Court under Section 13(3) of the Act as if a mortgage decree has been passed, has been considered by Pollock, J. in Vithal v. Laxman,1946 AIR(Nag) 45, by Grille J. in second Appeal No. 238 of 1944 and by Hidayatullah J. in Miscellaneous Second Appeal No. 173 of 1944. All three learned Judges are agreed that such a decree is possible, and the later two cases follow the earlier one. Pollock J.'s decision can be gathered from the head-note in the reported case which is to this effect:

Where there has been a preliminary decree for foreclosure, an order passed by the Deputy Commissioner under Section 13(3), C.P. and Berar Relief of Indebtedness Act has the effect of a final foreclosure decree.

6. It is argued that this takes no notice of the fact that the effect of the Debt Relief Court's order is to wipe out the original contract. The mortgage was not for instalments and accordingly the moment the Debt Belief Court scales down the debt and makes it payable by instalments it wipes out the original contract and substitutes something different for it. The Act nowhere provides that the original contract shall be revived, and as Section 13(3) speaks of the '' balance remaining due '' being recoverable it is evident that there was no indention to have the original contract revived.

7. It is true the rulings cited do not re