JUDGMENT

1. On 18th March 1911 the appellant Mahadeopal Singh executed a simple mortgage deed in favour of Babu Razawand Singh, father of the plaintiff-respondent, in respect of an eight annas share in village Hadrahi in the Partabgarh district and several villages in the Basti district. Village Hadrahi formed part of the Dandi Kach estate in respect of which Mahadeopal Singh had laid a claim in the mutation Court which had been successfully resisted by one Adya Bakhsh. In 1911 Mahadeopal Singh instituted a suit for possession of the Dandi Kach estate against Adya Bakhsh which was finally decided by means of a compromise between the parties. Some time after this compromise the plaintiff-respondent instituted a suit on foot of the mortgage deed 18th March 1911 claiming a decree for sale. On 29th September 1924 a sale decree was passed. The decree provided that village Hardrahi was to be sold subject to the rights of Adya Bakhsh under the compromise. In execution of this decree village Hardrahi was sold for Rs. 6,000 and execution was transferred to the Court of the Sub-ordinate Judge, Basti, for necessary sale proceedings in regard to the villages in the Basti district.

2. Peteshwaripal Singh, grandson of Mahadeopal Singh, instituted a suit in the Basti Court for declaration that the villages in the Basti district which were included in the deed of mortgage dated 18th March 1911 were joint family properties, that the mortgage made by his grandfather was without legal necessity and that the aforesaid properties could not be sold. The suit was dismissed by the Subordinate Judge but this decision was reversed by the Allahabad High Court. The High Court held that the properties in dispute were joint family properties and could not be sold. But in the interests of justice it was held that as there was a possibility a Pateshwaripal Singh succeeding to the interest acquired by Mahadeopal Singh in the Dandi Kach estate under the compromise above referred to, the decree in favour of Pateshwaripal Singh should be made subject to the condition that in case Pateshwaripal Singh succeeded to any portion of the Dandi Kach estate or obtained any benefit therein which was equal to or exceeding in value the amount of the decree, then he would be liable to pay the decretal amount on the property mortgaged. Thereupon the plaintiff made the application which has given rise to the present appeal, for a personal decree under Order 34, Rule 6.

3. The application was contested on several grounds but only one of them has been pressed before us, namely, that no decree can be passed under Order 34, Rule 6, because the necessary conditions laid down by that rule have not been satisfied in the case. The learned Subordinate Judge of Partabgarh rejected all the contentions urged on behalf of the defendant and gave the plaintiff a simple money decree for the balance of the decretal amount which still remains un-realized with future interest at 6 per cent per annum.

4. Mr. Wasim, the learned Counsel for the defendant-appellant, contends that the words "mortgaged property" used in Order 34, Rule 5, mean the property entered in the mortgage deed and the decree for sale. He does not deny that the Basti property is no longer available for sale but contends that as the entire mortgaged property has not yet been sold under Order 34, Rule 5 therefore no personal decree can be passed under Order 34, Rule 6. It is further argued that in the absence of any statutory provision allowing a personal decree to be passed, where part of the mortgaged property has ceased to be available for sale, no personal decree can be passed independently of the provisions of Order 34, Rule 6. He has also placed strong reliance upon the Full Bench decision of this Court to which one of us is a party in Shyam Behari v. Mohandei, AIR 1930 Oudh 377 in support of his argument that the plaintiff is not entitled to a personal decree under Order 34, Rule 6, Civil P.C.

5. Mr. Ali Zaheer the learned C