JUDGMENT

1. This is an execution of decree appeal against the judgment and decree dated 25th November 1936 passed by the learned Civil Judge of Mohanlalganj, Lucknow, dismissing an objection in execution proceedings on a decree dated 14th May 1927 obtained under Order 34, Rule 6, Civil P.C. The objection of the judgment-debtors was that execution was time barred, the application having been made more than 12 years after the date of the preliminary decree in the mortgage suit. The facts of the case were that the appellants were sued on a mortgage and a decree was passed against them on compromise on 25th April 1922. This decree provided that the judgment-debtors should have 14 months' time for payment of the decretal amount as agreed in the compromise, and that in case the money was not paid within this period, the decree should be made absolute. It also provided that if the sale proceeds of the mortgaged property were found insufficient to satisfy the decree, the plaintiff should be at liberty to apply for a personal decree for the balance.

2. Payment not having been made the decree was made absolute on 6th February 1925. The property covered by the mortgage was put to sale, but as the decree was not satisfied fully out of the sale proceeds the decree-holder secured a personal decree against the judgment-debtors on 14th May 1927. The compromise decree of 25th April 1922 was passed against two of the defendants on compromise, defendant 3, Mt. Wajib-un-nisa, not being a party to it. Proceedings continued against her, and a preliminary decree was eventually passed against her also on 31st July 1923. There was an appeal in the Court of the Judicial Commissioner of Oudh and this appeal, so far as the present appellants are concerned, was dismissed on 20th November 1924. The decree was made absolute on 6th February 1925. The present appeal has been filed only by the first two judgment-debtors. The objection of the appellants was dismissed by the learned Civil Judge, and after hearing their learned Counsel we are of opinion that this decision is right. It has been argued on behalf of the appellants that when a decree in a mortgage suit is passed on compromise, there is no question of a preliminary or a final decree, and that therefore in the present case we must look to the decree of 1922, and that it is this decree alone on which execution proceedings can be taken.

3. We have been referred in support of this argument to a number of authorities, but we do not consider that they are applicable to the facts of the present case. In Khulna Loan Co. Ltd. v. Jnanendra Nath Bose AIR 1917 PC 85 it was held by their Lordships of the Privy Council that a decree directing that the mortgaged property should be sold and if the proceeds of the sale were insufficient, the balance should be realized from the other properties and the persons of the judgment-debtors, does not give 12 years to the decree-holder for proceeding against the person and other properties of the judgment-debtor dating from the time when the mortgaged property has been sold, nor can such a decree be regarded as one in which the payment of money is directed to be made on a certain date, namely after the mortgaged property had been sold. This case is clearly distinguishable from the case under consideration, in that there was only one decree which itself provided that execution proceedings might be taken against the person and other pro-parties of the judgment-debtor for the balance if the proceeds of the sale were insufficient.

4. In Haripada Datta v. Sashi Bhushan Basu AIR 1928 Cal 668 a compromise decree was passed in a mortgage suit whereby the decretal amount was payable in instalments, and in default of two successive kists the amount could be realized at once and the properties under the "solehnama" were to remain under mortgage. On default a final decree was passed in 1911 and the property under the "solehnama" was sold. In 1920 a decree under Order 34, Rule 6, was obtain