Ghose and Rampini, JJ.
1. This is an appeal against an order of remand passed by the Additional District Judge of Bhagalpur.
2. The suit was to enforce a mortgage security executed in favour of Labo Modi on the 10th June 1881; and it was brought by the cousin of Labo Modi and his sons, it being alleged in the plaint that he and the plaintiff No. 1, that is to say, the cousin, were members of a joint undivided Hindu family governed by the Mitakshara law, and that since the death of Labo Modi the plaintiffs have continued to be members of the joint family.
3. We observe that although the mortgagors were parties, to his suit, no personal decree was asked for against them. The relief that was asked for was that the property hypothecated in the mortgage bond might be sold for the satisfaction of the plaintiff's claim.
4. A decree was passed in the plaintiffs' favour by the Court of First Instance; the Subordinate Judge, before whom an objection was raised by some of the defendants that by reason of Section 4 of Act VII of 1889, the Succession and Certificate Act, no decree could be passed against the defendants unless a certificate as provided by that section was produced, observed as follows: 'This suit is based on a mortgage bond, dated the 27th April 1875, and having been instituted alter more than six years had elapsed after the money became payable, plaintiff's cannot have any decree against the persons or other property of the executants, and plaintiffs have also sought to recover their money by sale of the mortgaged property (immoveable).' In this view of the matter he negatived the objection of the defendants; and the decree that was pronounced by him was as follows: 'The suit be decreed with costs and interest at 6 per cent, per annum from this day till realized by sale of the property pledged in the bond in suit. The property mortgaged will be liable to be sold unless the decree be otherwise satisfied within three months from this day.'
5. Against this decree the mortgagors did not prefer any appeal; and the only appeal preferred was by the assignees of the mortgaged premises, who were also defendants in the suit. Upon their appeal the learned Additional District Judge was of opinion that a certificate under Section 4 of the Succession Act was necessary before a decree could be pronounced in favour of the plaintiffs; and being of that opinion he reversed the judgment and decree of the Court of First Instance, and remanded the case to that Court in order to give the plaintiffs an opportunity to take out the requisite certificate.
6. It appears to us, in the first place, that this remand ought not to have been made, because the case had not been decided by the Court of First Instance upon any preliminary point. Section 562 of the Code of Civil Procedure provides: 'If the Court against whose decree the appeal is made has disposed of the suit upon a preliminary point, and the decree upon such preliminary point is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, together with a copy of the order in appeal, to the Court against whose decree the appeal is made, with directions to re-admit the suit under its original number in the register, and proceed to determine the suit on the merits.' Now, there can be no doubt that this order of remand was made by the District Judge under Section 562, because he directs that the case be restored to the file of the Subordinate Judge in order to give the plaintiffs an opportunity to take out the requisite certificate, and that it be disposed of after such opportunity has been given to the plaintiffs. It seems to be clear that Section 562 has no application; and if Section 562 does not apply, there is, so far as we can see, no other section under which the order of remand could have been made. We think that the Judge, if he thought that the production of a certificate under Section 4 of the Certificate Act was essentially necessary, should have retained the case on his own file, and required the plaintiffs to produce a certificate within a given time.
7. However that may be, we are of opinion that the Judge is in error in holding that Section 1 of the Succession and Certificate Act has any application to the facts of the present case. As already mentioned, no personal decree was asked for by the plaintiff's against the debtors; and the only parties before the Appellate Court being the plaintiff's on the one hand, and the assignees of the mortgaged premises on the other hand, no question whatever could arise before the District Judge in terms of Section 4 of the Succession and Certificate Act as to any decree being passed against the debtors of the deceased person for payment of the debt to the persons claiming to be entitled to the effects of the deceased person. The assignees of the mortgaged premises could not in any sense of the word be regarded as debtors. The plaintiffs have an equitable claim against them by reason of their being in possession of the property mortgaged; and upon that equitable right the plaintiffs brought their suit against them to sell the mortgaged property and to realise the money due to them.
8. This point was considered in the case of Roghu Nath Shaha v. Poresh Nath Pundari I.L.R. 15 Cal. 54 decided by a Division Bench of this Court (Wilson and O'klnealy, JJ.), and the learned Judges distinctly held that in a case like this no certificate was required under the provisions of Act XXVII of 1860, Section 2. The wording of that section is very similar to that of Section 4 of the Succession and Certificate Act, so far as the particular matter before us is concerned.
9. A case, however, has been quoted before us by one of the learned pleaders for the respondents, Janaki Ballav Sen v. Hafiz Mahomed Ali Khan I.L.R. 13 Cal 47. But the distinction between that case and a case like the one before us has been pointed out by the learned Judges who decided the case of Roghu Nath Shaha v. Poresh Nath Pundari I. L R. 15 Cal. 54 and that distinction lies in this: that in the case of Janaki Ballav Sen v. Hafiz Mahomed Ali Khan I.L.R. 15 Gal. 54 a personal decree was asked for, but here no personal decree was asked for and no personal decree was given by the Court of First Instance. Section 4 says: 'No Court shall pass a decree against a debtor for payment of his debt,' and so on. A mortgagee might ask for a decree against the person of the debtor; but the Court is not bound to make a personal decree: it might, if the facts permit, make a decree only against the property mortgaged by the defendant; and in the circumstances of the present case it was quite open to the Court of First Instance--in fact, it was its duty--to refrain from making a personal decree and to pass a decree charging the property in the hands of the defendants, 2nd party, for satisfaction of the claim of the plaintiffs. The relief that the plaintiffs asked for in this suit was not for recovery of the debt but, as observed by Sir Barnes Peacock in the Full Bench decision in Surwan Hossein v. Shahazdah Golam Mahomed 9 W.R. 170 it was a suit for the recovery of an interest in immoveable property. The question that the learned Judges had to decide in that case was no doubt a different question; it was one of limitation, but we take it, as it has always been understood in this Court, that a suit to enforce a charge against immoveable property is a suit for the recovery of an interest in immoveable property; and if that be the correct view to take, it seems to be obvious that the plaintiffs were entitled, not with standing the absence of a certificate under the Succession and Certificate Act, to sustain the decree that had been pronounced in their favour by the Court of First Instance, that being a decree charging the immoveable property in the hands of the 2nd party defendants.
10. In the view we have just expressed it is unnecessary to decide the other questions which have been raised in this appeal; one of them being whether Labo Modi and the plaintiffs having been members of a joint Mitakshara family, any certificate as provided by Section 4 of the Certificate Act was necessary.
11. The result is that the decree of the Lower Appellate Court must be set aside and the case remanded to that Court for trial of the other issues in the case.
12. Costs will abide the result.