1. I agree with the learned Subordinate judge that the provisions of Order 34, Rule 14 of the Civil Procedure Code do not apply to the facts of this case as the money decree obtained by the respondent was not strictly in satisfaction of a claim arising under the mortgage. It appears that the bond was not valid as a mortgage on account of the minor's guardian having failed to obtain the leave of the Court under Section 29 of the Guardian and Wards Act to charge the minor's immoveable property.
2. The decree declared that the debt might be recovered from the property that was made subject to the mortgage and from the 1st defendants' other properties.
3. Assuming that these words were intended to create a charge the case of Sowbagia Ammal v. Manicka Mudaliar : (1917)33MLJ601 cited in the Lower Court's order is an authority for holding that Order 34, Rule 14 of the Civil Procedure Code will not operate as a bar to the sale of such property. Hem Ban v. Bihari Gir I.L.R. (1905) All. 58 is a similar case of a charge created by a decree though the decree was a compromise decree. Gobinda Chandra Pal v. Krtilas Chandra Pal I.L.R. (1917) Cal. 530 was a case of a charge created by the act of the parties in the shape of a security bond, the property being also subject to another mortgage. It is therefore distinguishable It does not transpire from the report of that case why a money decree only was passed on the security bond. Madho Prasad Singh v. Baij Naih (1905) 2 All. L.J. 356 a case of an eral disclaimer of mortgage right has been distinguished in Chadi Lal v. Seadat-un-nissa Bibi I.L.R. (1916) All. 36 Suraj Narain Singh v. jagbali Shukul I.L.R. (1920) A. 566 is to the same effect. I am unable to understand how Nqrsingh Das v. Munna (1909) 6 All. L.J. 731 can be sustained as good law on the facts that appear from the judgment which do not seem to be on all|fours with those in Madho PrasadiSingh v. Baij Nath (1905) 2 All. L.J. 356 . I am of opinion that where the mortgage right is extinguished by limitation or by compromise or is in some way ineffective through some legal defect, Order 34 Rule 14 of the Civil Procedure Code will not bar a sale in execution of a simple money decree.
4. The appeal against order fails and is dismissed with costs.
5. I agree. The only point argued by the appellant is that the property cannot bo sold in the present execution proceedings without bringing a fresh suit for sale and reliance is placed on Order 34, Rule 14 of the Civil Procedure Code.
6. In the first place we construe the decree as giving no charge and this is conceded by the respondent. That being so, there is no need to apply the decision in Sowbagia Animal v. Manicka Mudaliar : (1917)33MLJ601 and the case in Gobinda Chandra Pal v. Kailas Chandra Pal I.L.R. (1917) Cal. 530 is not applicable as the facts of that case show that, in the suit on the security bond, there was a decree declaring a lien though why such a decree was passed is not clear from the report.
7. The appellant's contention is next based on the cases in Narsing Das v. Munna (1909) 6 All. L.J. 731 and in Madho Prasad Singh v. Baij Nath (1905) 2 All. L.J. 356 . The former case was cited in argument in the case of Chadi Lai v. Seadat Un-nissa Bibi I.L.R. (1916) All. 36 and not expressly referred to in the judgment. In my opinion the cases of Chadi Lal v. Seadat Un-nissa Bibi I.L.R. (1916) All. 36 and Suraj Narain Singh v. Jagbali Shukul I.L.R. (1920) All. 566 which follows it, lay down the correct principle viz., that, unless there is a subsisting mortgage on which'a suit for sale can be brough,t there is no scope for the operation of Order 34, Rule 14 of the Civil Procedure Code. The case in Madho Prasad Singh v. Baij Nath (1905) 2 All. L.J. 356 was no doubt followed in Kishen Lal v. Umrao Singh I.L.R.(1908) All. 146 , but in view of the actual decision in the latter case, viz., that the sale when in fact held, in contravention of Section 99 of the Transfer of Property Act (Order 34, Rule 14) is not void the approval of the former case is not of much force. The former case i. e. Madho Prasad Singh v. Baij Nath (1905) 2 All. L.J. 356 has been also distinguished in Chadi Lal v. Seadat Un-nissa Bibi I.L.R. (1916) All. 36. I doubt whether, after the disclaimer of the. mortgage by the mortgagee in the former case it was really open to him to file a suit for sale on it. I rather think he would have been precluded from doing so. Anyhow it was only because it was conceded before the learned Judges (Banerjee and Richards, JJ.) that the mortgage was still subsisting that the case was decided in the way it was (See Chadi Lal v. Seadat Un-nissa Bibi I.L.R. (1916) All. 36 . As to Hem Ban v. Bihari Gir I.L.R. (1905) All. 58 I observe that it was distinguished in Ganesh Singh v. Debt Singh I.L.R. (1910) All. 377 and though I am not able to follow the ground of the distinction for I see that the decree in the former case was a compromise decree; still it may be that it can be distinguished on anotherground. There seems to have been a charge given in the decree and possibly the decree was merely declaratory in its nature. If so, the case might have been correctly decided. If it were not so., I am inclined to dissent from it, having regard to the principle now laid down by the same Court in the latter cases with which I agree. The result is the appeal fails and is dismissed with costs. In view of the statement by the decree-holder in column 10 of his petition, 'There is also the mortgage right', I think it must be made clear in the proclamation, before the remaining properties are brought to sale that there is no such right subsisting in the decree-holder.