JUDGMENT

1. Report.--The question referred to the Full Bench for decision is:

Is the application of 23rd April 1928 maintainable in the circumstances of this case?

2. Now the circumstances are as follows:

The appellant obtained a decree for sale of immovable property on 25th September 1922 on the foot of a mortgage of 4th March 1916. The decree was made final on 8th September 1923 before the appellant could proceed to bring the mortgaged property to sale. The property was sold in the year 1927 in pursuance of another decree for sale in favour of a mortgagee prior to the appellant. The appellant was a party to the decree of the prior mortgagee. On 23rd April 1928 the appellant made the application, to which the question refers, for a personal decree against the mortgagor under Order 34, Rule 6, Civil P.C., for the amount of the mortgage-money. In the first instance the application was rejected on the ground that it was barred by limitation but on appeal this order was set aside and now both the lower Courts have dismissed the application on the ground that it was not maintainable because there had been no sale under the appellant's mortgage decree and consequently the requirements of Rule 6, Order 34, of the Code are not fulfilled.

3. The question therefore which is covered by the reference and which we have to decide, is as to whether the view taken by the Courts below is correct or not. We have heard arguments at great length in this case and have also taken time to consider our judgment. On behalf of the appellant the following cases were cited:

Jeuna Bahu v. Parmeswar Narayan Mahtha A.I.R. 1918 P.C. 159; Sheo Din v. Bhawani Bakhsh, [1911] 14 O.C. 62, Ram Raghubir v. Imami Begam, [1911] 14 O.C. 217; Brij Behari Lal v. Indarpal Singh, [1920] 23 O.C. 145; Syed Wasi Ali v. Jang Bahadur Singh, [1915] 34 I.C. 48; and Adhar Chandra Naskar v. Sarnwamoyi Dasi, AIR1929Cal121 .

4. Before proceeding to give our answer to the question under reference we want to make it perfectly clear that we do not wish to express our opinion on any question other than the question as to whether the application which purports to have been made under Order 34, Rule 6, Civil P.C., is or is not maintainable having regard to the sole fact that no sale of the mortgaged property in pursuance of the decree passed in favour of the appellant on 8th September 1923 had taken place. The reason for making this observation is that it was argued on behalf of the appellant that the relief for a personal decree could be granted to the appellant independently of the provisions of Rule 6, Order 34, Civil P.C., and in support of the argument reliance was placed on a recent decision of a Bench of the High Court at Allahabad in the case of Bisheshar Nath v. Chandu Lal, AIR1928All71 .

5. The decision of their Lordships of the Judicial Committee in the case of Jeuna Bahu v. Parmeswar Narayan, A.I.R. 1918 P.C. 159 does not in our opinion support the view that a personal decree in pursuance of the provisions of Rule 6, Order 34 of the Code can be made even where no sale under the final decree has as a matter of fact taken place. All that was decided in that case was that a decree of the nature contemplated by Rule 6 could be made in anticipation of sale directed to take place by the terms of the preliminary decree; and as a matter of fact, before action was taken under Section 90, T.P. Act, then in force, a sale had taken place. As regards the other cases cited by the learned Counsel for the appellant it must be admitted that they support the argument that a decree under Rule 6, Order 34 could be made where the mortgaged property is not available for sale for some reason or another and thug no sale as a matter of fact takes place. This view is supported in the judgments of those cases on some equitable principle, and analogy is taken generally from the principle that a mortgagee has a right to abandon his security in part or in whole and proceed to realize the debt either from t