1. On 22nd August 1917, one Sirajuddin took a lease of certain zamindari property from Rani Phul Kunwar. A patta and a kabuliyat were executed in evidence of this transaction and the lessee agreed to pay to the lessor Rs. 2,500 in certain instalments. On the same date, Niaz Ahmed stood surety for the lessee and executed a surety bond in favour of Rani Phul Kunwar, whereby he agreed to pay her Rs. 2,500 together with interest at a certain rate in case of default on the part of the lessee and hypothecated his immovable property in her favour.
2. The lessee did not pay the stipulated instalments and a right of suit accrued to Rani Phul Kunwar against the lessee and his surety. In 1924, the surety applied to the Bombay High Court to be declared an insolvent. It is said that notice of this application was issued to Rani Phul Kunwar. We do not know why this notice was given. A copy of this notice is not on the record and we do not know its contents.
3. Niaz Ahmed was duly adjudicated an insolvent. Later on he applied for his discharge. Notice of his application was given to his creditors and presumably to Rani Phul Kunwar who was misdeacribed as the 'wife of H.H. Maharajah Ranjit Singh.' Rani Phul Kunwar was not the wife but the widow of Rai Bahadur Chaudury Ranjit Singh. The insolvent was duly discharged by the Bombay High Court on 17th August' 1926. Rani Phul Kunwar sued on her mortgage and obtained a decree for principal and interest by the sale of the mortgaged property. The decree was passed for a sum of Rs. 4,643-9-0. A final decree was obtained against the mortgagor and in execution of this decree his property was sold for Rs. 479.
4. Rani Phul Kunwar applied for a decree over under Order 34, Rule 6, Civil P.C. Her application was resisted by the mortgagor on the ground that the order of discharge by the Bombay High Court in the exercise of its insolvency jurisdiction completely absolved him from all debts due from him until the date of his discharge and that the order of discharge operated as res judicata. This plea was overruled by the Subordinate Judge of Moradabad and a decree for the balance due on the mortgage after sale of the property was passed in favour of Rani Phul Kunwar.
5. Niaz Ahmad has applied to this Court for a revision of this order under Section 115, Civil P.C. Where a simple money decree has been passed under Order 34, Rule 6, Civil P.C. the remedy of the defendant is to file an appeal. Where another remedy exists by statute, an application for revision under Section 115, Civil P.C. is not competent. Rani Phul Kunwar being a secured creditor, the debt due to her was not provable in bankruptcy. Under Section 17, Presidency Towns Insolvency Act, the order of adjudication does not affect the power of any secured creditor to realize or otherwise deal with his security as he would have been entitled to independently of that section.
6. The order of discharge has no more effect upon the right of the secured creditor than the order of adjudication. Under Section 45(2),
an order of discharge shall release the insolvent from all debts provable in insolvency.
7. The debt due to a secured creditor is not a debt provable in insolvency. The order of adjudication and the subsequent order of discharge cannot affect the rights of the secured creditor which flow from the mortgage contract. There is no difference in this respect between the Provincial and the Presidency Towns Insolvency Acts. Where a mortgagor has been adjudicated an insolvent with reference to certain debts which were provable in insolvency the order of adjudication and the order of discharge do not and cannot prejudicially affect the legal rights of the creditor against the debtor in respect of debts which were not provable in insolvency.
8. The mortgagee was entitled to a decree over under Order 34, Rule 6, Civil P.C., if on the date of his application
the balance was legally recoverable from the defendant otherwise than out of the property sold.
9. The mortgaged property was sold in execution of Rani Phul Kunwar's decree after the order of discharge. The right to a decree under Order 34, Rule 6, Civil P.C. did not accrue till after the sale of the property. The right to a personal decree was not time barred on the date of the presentation of the application. The order of discharge cannot take away the statutory right of the decree-holder which materialized long after the order of discharge. We hold that the decree was rightly passed. Our attention has been drawn to Section 128, Contract Act. This section is irrelevant. We dismiss the application with costs.