JUDGMENT

Bhide, J. - The sole point for decision. in this second appeal is whether a personal decree can be passed under Order 34 Rule 6, Civil P.C., when the mortgaged property has either not been sold or the sale has been set aside owing to a third party having been declared to be the owner of the property. The learned District Judge has held, in disagreement with the view of the trial Court, that in the present case as the mortgaged property had not been sold owing to a third party having been declared to be the owner thereof no personal decree could be passed under Order 34, Rule 6, Civil P.C. In arriving at this decision he has relied on a. ruling of the Allahabad High Court reported as Babu Lal v. Raghunandan . The view taken by the Allahabad High Court, however appears to be in conflict with the view taken on the same point by the High Courts of Madras, Calcutta, Bombay and Patna. It has been held by these High Courts that if the, mortgaged property has ceased to be available for the benefit of the mortgagee, for instance, by loss or fire or by the property having been declared to belong to third persons there is no bar to a personal decree being passed under Order 34, Rule 6, Civil P.C.: of Periyasami Kone v. Muthia Chettiar AIR 1915 Mad 452, Adhar Chandra v. Sarnwamoyi Dasi , Hari Janardhan v. Krishna Ji Balkrishna A.I.R. 1928 Bom. 323 and Samaria Gagarnath v. Lokenath Sukul AIR 1921 Pat 49. Even the Allahabad High Court has held in Bisheshar Nath v. Chandu Lal , that a personal decree could under such circumstances be passed independently of the provisions of Order 34, Rule 6. Civil P.C. The learned District Judge was apparently under the impression that no sale had taken place in the case. This is not correct. The sale had actually taken place and it was subsequently that the sale had been set aside owing to a decree obtained by a third party. Consequently, even the requirements of Order 34, Rule 6, may be said to have been technically fulfilled as was held by the Allahabad High Court itself in Badal Singh v. Debi Saran , in similar circumstances. But apart from this it seems to me that the weight of authority is in favour of the view that when the mortgaged property ceases to be available for the benefit of a mortgagee owing to the claim of third parties and not through any fault of the mortgagee himself, a personal decree can be passed under Order 34, Rule 6, Civil P.C. Following these authorities I accept the appeal, and setting aside the order of the learned District Judge, remand the case to him for decision of the other points arising in the case. Stamp on appeal shall be refunded: other costs will follow final decision.