Sabyasachi Mukharji, J.
1. The plaintiff in the instant case had filed this suit against the defendants on the 2nd of July, 1974, for a declaration of charge in respect of two immoveable properties belonging to the defendants and for a decree under Order 34, Rule 5-A of the Code of Civil Procedure. A preliminary mortgage decree was passed on the 7th March, 1975. Thereafter, 0s the defendants failed to pay the dues in accordance with the preliminary decree an application was made. From the said preliminary decree an appeal was preferred end is still pending. Thereafter, as the defendants did not pay the decretal dues, an application was made for a final decree. I passed the final decree on the 16th December, 1975, An appeal fro the said final decree is pending. These shortly are facts relevant for the purpose of this application. The petitioner thereafter made an application to the court of appeal for interim stay or decree pending the hearing of the appeal from the final decree. No order was made on that application without prejudice to the rights of the petitioner to make an application under Order 41, Rule 6 if the petitioner was otherwise entitled to under the law. This is an application in which the petitioner is asking for various reliefs, inter alia, that the operation of the final decree passed by me be stayed until the final disposal of the appeal. It was contended that this application was under the provisions of Sub-rule (2) of Rule 6 of Order 41 of the Code of Civil Procedure. Sub-rule (2) of Rule 6 of Order 41 deals with the case where an order has been made for sale of immoveable property in execution of a decree. The question is whether an order has been made for sale of immoveable property in execution of a decree. Reading the section as it is I am unable to accept the contention that a final decree in a mortgage suit is an order for sale of immoveable property in execution of the decree. In order to be executable there must be a decree which can be executed. The preliminary decree is not capable of execution as such. There can be no execution until a final decree is passed. This position appears to me clear from the provisions of Sub-rule (2) of Rule 6 of Order 41. This view in my opinion is also supported by the decision of a Full Bench of the Allahabad High Court in the case of Sat Parkesh v. Bahal Rai, AIR 1931 All 386 at page 387. In the case of Madan Theatres Ltd. v. Dinshaw and Co., AIR 1945 PC 152 the Judicial Committee also was of the same view. This question was considered also by a Bench decision of this Court in the case of Jivandas Khimji v. Dindoyal Shah, (1946) 50 Cal WN 486 where the Division Bench observed that a preliminary decree in a mortgage suit was not a decree for payment of money and such a decree, in default of payment by the judgment-debtor as directed thereunder, could not be executed by the attachment and sale of the property of the judgment-debtor. The sole remedy of the decree-holder in such circumstances was to apply for a final decree under Order 34, Rule 6 of the Code of Civil Procedure. If a preliminary decree in mortgage suit was not a decree for payment of money, then the order passed after the preliminary decree could not in my opinion be considered to be an order in execution of a decree.
2. Counsel for the petitioner, however, contended that in view of certain observations of the judicial committee it should be considered that a final decree in a mortgage suit was really an order in execution of the decree. In order to appreciate this contention it would be relevant to refer to Sections 88 and 89 of the Transfer of Property Act as it stood prior to its amendment, by Transfer of Property (Amendment Supplementary) Act 1929. Sections 88 and 89 were as follows :
'88. In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in the first and second paragraphs of Section 86, and also ordering that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after defraying thereout the expenses of the sale) be paid into Court and applied in payment of what is so found due to the plaintiff, and that the balance, if any, be paid to the defendant or other persons entitled to receive the same.
In a suit for foreclosure, if the plaintiff succeeds and the mortgage is not a mortgage by conditional sale, the Court may, at the instance of the plaintiff, or of any person interested either in the mortgage-money or in the right of redemption, if it thinks fit, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum, fixed by the Court to meet the expenses of sale and to secure the performance of the terms.
89. If in any case under Section 88 the defendant pays to the plaintiff or into Court on the day fixed as aforesaid the amount due under the mortgage, the costs, if any, awarded to him and such subsequent costs as are mentioned in Section 94, the defendant shall (if necessary) be put in possession of the mortgaged property; but if such payment is not so made, the plaintiff or the defendant, as the case may be, may apply to the Court for an order absolute for sale of the mortgaged property, and the Court shall then pass an order that such property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Section 88; and thereupon the defendant's right to redeem and the security shall both be extinguished.'
What had happened was that there was a suit in the High Court, upon the mortgage in which the mortgagee obtained a consent decree dated the 16th December, 1886, for payment on June 15, 1887, with the provision that in default of payment the mortgaged property should be sold and the mortgagor should make good any deficiency arising under the sale On the 3rd of July, 1909, no payment having been made, the mortgagee applied to the High Court for relief to sell the mortgaged property. The High Court decided that the application was one to 'enforce a judgment or decree' within the meaning of Schedule 1, Article 183 of the Limitation Act, 1908 and was barred since it was not made within 12 years from the 15th June, 1887. The decision of the High Court is reported in (1911) ILR 38 Cal 913. On appeal the Judicial Committee held that the decision of the High Court was right. The decision of the Judicial Committee is reported in 42 Ind App 88 (89) = (AIR 1914 PC 150). I am not concerned with the meaning of the expression 'to enforce a judgment or decree' as contemplated under Article 183 of the Limitation Act, 1908. I am concerned only with the question whether the final decree that is passed is an order for sale of property in execution of a decree. This has to be construed in the light of the definition of the decree as provided by Section 2(2) of the Code of Civil Procedure. My attention was also drawn to a decision of the Bombay High Court in the case of Murlidhar v. Vishnudas, AIR 1916 Bom 305 where it was held that like a decree under Section 88 of the Transfer of Property Act a preliminary decree under Order 34, Rule 4 was a decree which must be appealed from if the party concerned was aggrieved by it. If it was not appealed from, it should be accepted as determining the rights of the parties for the purpose of all subsequent proceedings, in that context the Bombay High Court noted for the purpose of limitation when an order for sale on default of payment was one for the execution of the decree or to enforce a judgment under Article 189. As mentioned hereinbefore for the purpose of this application in view of the language used in Sub-rule (2) of Rule 6 of Order 41 reed with the definition of decree under Section 2(2) of the Code and the scheme of the preliminary and final decree and authorities as indicated before, I am of the opinion, that when an order is made for a final decree, it is not an order for sale of immoveable property in execution of a decree.
3. Counsel then contended that for execution of a final decree there was no other procedure available and only the decree had only to be filed. He drew my attention to the relevant rules of the High Court for enforcement of final decree. It was not necessary to have the certified copy or to proceed by tabular statement as required. Whether the same is required or not, in my opinion, it is not necessary for me to go into this aspect at this stage. Whether the other procedure required for enforcement of a final decree for putting the property to sale would be steps in execution of decree or not it is also not necessary for me to decide. It was, lastly, contended on behalf of the respondent that the application as framed was not under Sub-rule (2) of Rule 6 of Order 41. Though the petition is not happily worded, I am unable to accept this contention on behalf of the respondent.
4. In the view I have taken this application must, therefore, fail and is dismissed with costs.