1. This is an execution appeal by the plaintiff decree-holder. The suit was brought for sale on the basis of a mortgage-deed executed by a Hindu father, and a preliminary decree was passed on 13th January 1920, for Rs. 573. The sons of the mortgagor were not parties to the suit. They subsequently brought a suit for a declaration that the debt was without legal necessity and was not binding on the family property. Their suit was decreed on 24th July 1920, the Court holding that though the principal sum was for necessity, it was not proved that there was necessity for the high rate of interest charged. Accordingly it held that the mortgage-debt was good to the extent of Rs. 429-3-0. After this decree the sons were made parties to the final decree in the mortgage suit which was passed on 7th May 1921, for Rs. 429-3-0 only. There was no reference in this final decree to the plaintiff's right to recover the balance of the amount allowed to him under the preliminary decree.
2. On 15th April 1924, the plaintiff filed the present application styling it as one under Order 34, Rule 6 praying for a personal decree for the balance of the amount against the mortgagor. This application was contested, and has been dismissed by both the Courts below. Their order has been affirmed by a learned Judge of this Court.
3. The effect of the declaratory decree obtained by the sons undoubtedly was to confine the charge on the family property to Rs. 429-3-0 only. The balance of the amount ceased to be a mortgage-debt.
4. Although, therefore, the original suit had been instituted within six years of the execution of the mortgage-deed, so that the personal remedy had not become barred we cannot hold that the plaintiff has under Order 34, Rule 6, a right to recover the balance of the amount. That rule contemplates the insufficiency of the net proceeds of the sale to pay the 'amount due,' which expression, in our opinion means the amount, to recover which, a decree for sale has been previously passed.
5. In this view, the application did not lie under Order 34, Rule 6 to recover the balance, as this balance ceased to be a charge on the property, and it cannot be said that the sale-proceeds have proved insufficient to pay this amount. The right of the plaintiff to recover the balance must, therefore, be by execution of the decree for the balance, treating it as a simple money-decree.
6. It is unfortunate for the plaintiff that when the final decree came to be passed, he did not ask the Court to re-affirm his right to recover the balance by incorporating it in this decree also. That such a procedure would not have been improper is patent, as it is possible that the sons' suit may be brought more than three years after the preliminary decree for sale, in which case it would be unjust to hold that the plaintiffs' right to recover the amount personally against a mortgagor would be extinguished by the lapse of three years from the decree. The fact, however, remains that the final decree did not make any provision for the realization of this money. The plaintiff, therefore, cannot in execution of the final decree of 7th May 1921, realize this amount. He can only fall back on his preliminary decree. The right to recover this certainly accrued to him when the declaratory decree in favour of the sons was passed on 24th July 1920, and on that date it must be deemed to have been settled that his remedy for the balance was against the mortgagor personally. The present application is made more than three years after that date, and even treating it as an application for execution of the personal decree under Section 47, Civil P.C., it is barred by the three years' rule under Article 181, Lim. Act.
7. The appeal accordingly must be dismissed.
8. In view of the Special circumstances of this case, we direct that the parties should bear their own costs of this appeal.