1. This is an application for revision of an order passed by the learned District Judge of Allahabad confirming that of a Munsif of that district dismissing an application made by the applicant before us for an order to set aside an ex parte decree passed against him under Order 34, Rule 6, Civil P.C.
2. The applicant Babu Lal executed a deed of simple mortgage in favour of Raghunandan for a certain sum of money on 15th July 1913. Raghunandan brought Suit No. 241 of 1924 for enforcement of that mortgage and for a personal decree in case the proceeds of sale of the mortgaged property proved to be insufficient to satisfy the decretal amount. A preliminary decree was passed on 22nd May 1924, in terms of the prayer made by the plaintiff in the aforesaid suit. Subsequently Datti Lal instituted suit No. 267 of 1925 for a declaration that the property mortgaged by Babu Lal belonged to him and that Babu Lal had no right to mortgage the same. The suit was decreed and the decree was affirmed on appeal. The result of the decree in the suit last mentioned was that the mortgaged property and consequently the expected proceeds of sale thereof were not available to the mortgagee.
3. On 30th August 1927, Raghunandan applied for a decree under Order 84, Rule 6, Civil P.C., and obtained it ex parte on 22nd October 1927. On 22nd December 1927, Babu Lal applied under Order 9, R, 13, Civil P.C., for an order setting aside the ex parte decree on the allegation that he had sufficient cause for non-appearance on the date on which the ex parte decree was passed. The Court of first instance (a Munsif of Allahabad) dismissed it on the ground that an application under Order 34, Rule 6, Civil P.C., is an application made in execution proceedings and consequently an application for an order to set aside an ex parte decree under Order 9, Rule 13, is not maintainable. An appeal by Babu Lal to the learned District Judge was unsuccessful. He has come up to this Court in revision.
4. The question raised by this revision is whether proceedings under Order 34. Rule 6, Civil P.C., should be considered to be proceedings to which the provisions of Order 9, Civil P.C., are applicable.
5. We are clearly of opinion that the view taken by both the Courts below cannot be supported with reference to the provisions of the Civil Procedure Code, Act 5 of 1908. The learned District Judge has not discussed the question of law which was raised before him and which arises before us. He seems to have accepted the ground on which the judgment of the Court of first instance proceeds. The latter relied on Durga Dai v. Bhagwat Prasad  13 All. 356, which was decided when Section 90, T.P. Act 4 of 1882 had not been repealed and replaced by Order 34, Rule 6, Civil P.C. It should be borne in mind in this connexion that a very material change has been introduced by Order 34, Civil P.C., which has taken the place of a number of sections of the Transfer of Property Act including Section 90. Under the Transfer of Property Act in suits for sale on foot of 'mortgages only one decree was to be passed and followed by an order absolute and if the proceeds of sale proved to be insufficient a decree over under Section 90 of that Act could be obtained. The provisions of Order 34 of the present Civil P.C., on the other hand, make clear provisions as regards a preliminary decree to be followed by another decree called a final decree. An application under Order 34, Rule 6, Civil P.C., for a decree over is, of course, to be made after the final decree for sale has been completely executed and the proceeds of sale have been found to be insufficient for the satisfaction of the decretal amount. It was held under the Transfer of Property Act that an application for an order absolute under Section 89 of that Act, and also an application for a decree over under Section 90, were applications in execution proceedings. It is not necessary for us to examine the soundness or otherwise of that view. It is enough to take it that this view prevailed,_at_any rate, in this Court Durga Dai v. Bhagwat Prasad  13 All. 356, relied on by the Court of first instance, proceeds on that view. It was observed that:
the decree mentioned in Section 90, Act 4 of 1882 is one that is given in the execution proceedings arising under a decree for sale upon a mortgage and stands upon the same footing as an order absolute for sale, which the Full Bench of the Court has held to be a proceeding in execution.
6. In view of the scheme of Order 34, Civil P.C., it is difficult to treat an application under Order 34, Rule 6, Civil P.C., as an application in execution proceedings which can in no sense be considered to be an application for execution or made in proceedings taken in execution of any decree which precedes it. A final decree for sale directs only the sale of the mortgaged property and cannot itself be considered to be a simple money decree or capable of execution for obtaining satisfaction of the decretal amount by attachment of other property belonging to the judgment-debtor or by process directed against his person. It is clear to us that an application under Order 34, Rule 6, Civil P.C., starts a proceeding which may end in a simple money decree. It does not seek enforcement of any decree already passed in the mortgage suit.
7. In Ahmad Khan v. Gaura  16 A.L.J. 143 it was held by this Court in reference to the present Code of Civil Procedure (Act 5 of 1908) that:
a final decree in a mortgage suit is a decree in the suit itself and an application for a final decree cannot be deemed to be an application in execution.
8. This is clearly a departure from the old view, which maintained that an application for an order absolute under Section 89, T.P. Act, was an application in execution. It was held as a corollary from the last proposition that an application under Section 90, T.P. Act, was an application in execution. The case of Ahmad Khan v. Gaura  16 A.L.J. 143, interpreting Order 34, Rule 5, Civil P.C., corresponding to Section 89, T.P. Act, is an authority for the proposition that an application for a final decree is not an application in execution. It follows that an application under Order 34, Rule 6, Civil P.C., cannot likewise be considered to be an application in execution.
9. The case of Mohammad Iltifat Husain v. Alimunnissa  40 All. 551, decided by a Division Bench of this Court, is directly in point. It was held that:
an application under Order 34, Rule 6, Civil P.C. is an application in the original suit for a new decree, and it cannot be regarded as an application in execution.
10. The result is that proceedings started by an application under Order 34, Rule 6, Civil P.C., are not proceedings in execution. They are, in our opinion, proceedings in the suit and, at any rate, of the nature contemplated by Section 141, Civil P.C., which makes the provisions of Order 9, Civil P.C., applicable to ex parte decrees passed in such proceedings. This being so the application made by the applicant for an order to set aside the ex parte decree passed under Order 34, Rule 6, Civil P.C., was clearly maintainable.
11. It was contended that the order passed by the Courts below cannot be the subject of revision under Section 115, Civil P.C. We are however of opinion that the Court of first instance failed to exercise a jurisdiction vested in it by law on the erroneous ground that the application for an order to set aside an ex parte decree under Order 34, Rule 6, Civil P.C., is not maintainable.
12. In the view of the case we have taken this revision is allowed. We set aside the orders of both the Courts below and remand the case to the Court of first instance for disposal of the applicant's application, dated 22nd December 1927, on the merits. Costs here and heretofore shall abide the result.