1. This is a Letters Patent Appeal arising out of certain execution proceedings on 13th May 1909. The judgment-debtors had executed a mortgage-deed of property situated in Bundelkhand in favour of the decree-holder. A preliminary decree for sale was obtained on 17th June 1918, which was followed up by a final decree on 20th December 1919, when an application for execution was filed and the decree-holder wanted to have the mortgaged property sold. An objection was raised by the judgment-debtors that the property being situated in Bundelkhand was not liable to be sold under Section 16, Bundelkhand Land Alienation Act (U.P. Act 2 of 1903). This objection was allowed and the application was dismissed. After this the decree-holder filed an application purporting to been application under Section 9, sub-Cl. (3), of the Act requesting the Court to refer the case to the Collector with a view to the exercise of the power conferred upon him by sub Section 1 of Section 9. The objection was raised on behalf of the judgment-debtor that-sub-section was not applicable after the final decree was passed. This objection was disallowed by both the Courts below and also by a learned Judge of this Court.
2. Section 9, Sub-clause (3), is not limited to a case where the point is raised before the decree is actually passed by the Court. We, therefore, find it; impossible to hold that the Civil Court ceased to have jurisdiction to act under that sub-section as soon as a nominal decree was passed which cannot in fact be executed by the sale of the property mortgaged. The position of the judgment-debtor and the decree-holder would be the same even if a decree has been passed which is incapable of execution. This view is supported by a decision of this Court in execution Second Appeal No. 1457 of 1920, decided on 18th July 1922, where it was held that there was nothing in the wording of the section to support the contention that the provisions of Section 9, have effect only before a decree is passed and not afterwards. The view taken by the learned Judge of this Court is in accordance with the previous decision, with which we agree.
3. We would, however, like to point out that it is advisable that original Courts, when they find that a mortgage has been made which is ordinarily enforcible but which covers property situated within Bundelkhand which cannot be sold, should take action under Section 9(3) before passing the decree and not wait till the decree has been passed. We accordingly dismiss this appeal with costs including in this Court fees on the higher scale.