JUDGMENT 1. On the 19th September 1895, the Defendant-Respondent executed a mortgage bond in favour of one Sakhi Sukul now represented by his sons, the Appellants. In 1901, the mortgagee sued to enforce the security against the mortgagor and other persons who had meanwhile acquired an interest in different portions of the equity of redemption On the 30th April 1902, the usual mortgage decree was made in favour of the Plaintiff, mortgagee. Subsequently the Plaintiff died, and his sons, the present Appellants, made an application for order absolute. Their names were substituted in the mortgage decree which was made absolute on the 6th January 1904. The mortgaged properties were then sold at their instance, and the sale-proceeds were applied in partial satisfaction of the decree. On the 23rd December 1904, they applied to the Court for a decree against the mortgagor for the balance of the amount still due on the mortgage. Objection was taken on behalf of the mortgagor that no decree could be made in favour of the applicants until they obtained a certificate under the Succession Certificate Act. The Court of first instance overruled this objection and passed a decree in favour of the applicants under sec. 90 of the Transfer of Property Act. Upon appeal, the learned District Judge reversed this decision. The applicants have now appealed to this Court, and on their behalf it has been contended, that the provisions of sec. The Court of first instance overruled this objection and passed a decree in favour of the applicants under sec. 90 of the Transfer of Property Act. Upon appeal, the learned District Judge reversed this decision. The applicants have now appealed to this Court, and on their behalf it has been contended, that the provisions of sec. 4 of the Succession Certificate Act, are inapplicable for five reasons; namely, first, that the amount in respect of which a personal decree is sought Is not a debt because it was indefinite and unliquidated at the time of the death of the creditor; secondly, that if it is a debt, it was not due to the deceased, but accrued due to the applicants after the mortgaged properties had been exhausted and the Bale-proceeds had been found insufficient; thirdly, that the succession opened out during the pendency of proceedings in Court; fourthly, that as the title of the applicants is not disputed, there is no necessity for the production of a certificate, and, fifthly, that as the applicants were members of a joint Hindu family with their father, governed by the Mitakshara law, the right to realise the debt has vested in them by survivorship and not in virtue of inheritance, It has also been contended that an opportunity ought to have been afforded to them to produce a succession certificate if one is required by law. 2. In support, of the first branch of his contention, the learned vakil for the Appellants placed reliance upon the cases of Bisseswar Roy v. Durgadas Mehara ILR 32 Cal. 418 (1905), Subbauna v. Munckka ILR 18 Mad. 457 and Sabju Sahib v. Noorddin Sahib ILR 22 Mad. 139 (1898). These cases are authorities for the proposition that a liability, which is not in respect of a liquidated sum, cannot be held to be a debt in the ordinary accepted legal sense of the term. In this view of the matter, it was ruled in the first and third cases, that a suit for account by a principal against an agent or by one member of a firm against another for account of partnership assets is not a suit for a debt within the meaning of sec. 4 of the Succession Certificate Act. These oases, however, are obviously distinguishble. Here the demand of the Plaintiff, mortgagee, is for a sum certain. 4 of the Succession Certificate Act. These oases, however, are obviously distinguishble. Here the demand of the Plaintiff, mortgagee, is for a sum certain. It is in every sense of the word an ascertained debt, founded on an express contract, and not an unliquidated demand or liability. No doubt, the sum recoverable by the mortgagee from the mortgagor personally does not admit of specification till the mortgaged properties have been exhausted, and the debt satisfied in part, but that only Bhows, not that the claim of the mortgagee is in respect of an unliquidated sum, but that his remedies for the recovery thereof are in the first instance restricted. To recover his debt he must first proceed to sell the mortgaged properties, and it is only when the sale-proceeds are insufficient to satisfy the demand, that he is at liberty to proceed personally against his debtor. The cases of Hari Das v. Baroda ILR 27 Cal. 38 (1899) and Dambar Koeri v. Sham Kitten 9 C.W.N. 703 (1905) do not in any way militate against this view, because here the debt is an actully existing debt and not merely a contingent debt which might or might not become due. The distinction is between a liquidated money demand, Rawley v. Rawley 1 Q.B.D. 460 (1876), and unliquidated damages, for instance, damages for tort or for breach of covenant, Wilson v. Knubby 7 East 128. In the case before us, the action is founded on an express contract in which, to use the language of Bacon's Abridgment, the certainty of the sum or duty appears, and "the Plaintiff is to recover the same In numero and not to be repaired in damages as in those actions sounding in damages." [ Watson v. McNainy 1 Bibb (Ky.) 856, Bawn v. Tonkin 110 Penn 569, 1 Atiantic 545]. From this point of view, it appears to us to be clear that the claim is in respect of a debt within the meaning of sec. 4 of the Succession Certificate Act. The first branch of the contention of the Appellants consequently fails. 3. From this point of view, it appears to us to be clear that the claim is in respect of a debt within the meaning of sec. 4 of the Succession Certificate Act. The first branch of the contention of the Appellants consequently fails. 3. In support of the second branch of the contention of the Appellant, reliance was placed upon the case of Nemdhari v. Bissessari Kumari 2 C.W.N. 591 (1898), in which it was ruled that the Succession Certificate Act refers only to debts upon which the deceased could sue, and that, consequently, a debt which bad accrued due since the death of the deceased was not a debt in respect of which a certificate need be produced. This principle has obviously no application to a case like the present. Here the whole debt accrued due on the 29th March 1896 the date for repayment mentioned in the bond. It may be conceded, that the creditor was bound in the first instance to seek a particular remedy for the satisfaction of his claim, but nevertheless the debt was all the while in existence and in full vigour. There is no foundation for the assumption that the debt came into existence or accrued due for the first time, when the sale-proceeds proved insufficient to satisfy the mortgage decree. One test appears to us to be conclusive. If a question arises as to whether the personal remedy is barred by limitation, with reference to what point of time is the matter to be determined. It was ruled by this Court in Purna Chandra Mandal v. Radha Nath Dass 4 C.L.J. 141 : s.c. ILR 83 Cal. 867 (1906) and Rahamat Karim v. Abdul Karim 11 C.W.N. 674 : s.c. 6 C.L.J 119 (1907), that when an application is made under sec. 90 of the Transfer of Property Act for a supplemental decree, the Court has to consider, whether the personal remedy was barred by the rule of six years at the date of the institution of the suit. This view, which is identical with that taken in the case of In re Barker's claim [McDermott v. Boyd L.R. (1894) 3 Ch. 290], is manifestly inconsistent with the theory that the debt accrued due after the sale of the mortgaged properties. To use the language of Lord Herschell, in the case just mentioned. This view, which is identical with that taken in the case of In re Barker's claim [McDermott v. Boyd L.R. (1894) 3 Ch. 290], is manifestly inconsistent with the theory that the debt accrued due after the sale of the mortgaged properties. To use the language of Lord Herschell, in the case just mentioned. "The right of realization as against the debtors personally did not give a separate and independent cause of action; the truth is, that the debt is one debt only." In other words, as Lord Justice Lindley puts it. "The promise to pay the deficiency does not create a new obligation to pay, it only applies the old obligation to a reduced sum; the realisation of the security does not add to the cause of action, the cause of action accrued long before." It follows, therefore, that in the case before us, the debt, which the creditor seeks to enforce, accrued due during the lifetime of the creditor. The second part of the contention of the Appellants also falls. 4. In support of the third head of the contention for the Appellants, allusion was made to a dictum of the learned Judges who decided the case of Baid Nath v. Shamanand ILR 22 Pal. 143 (1894) and to the decision of this Court in Mahomed Yusuf v. Abdur Rahim 4 C.W.N. 558: s.c. ILR 26 Cal 839 (1899). In the former of these cases, it was observed, that it is extremely doubtful whether the Legislature ever intended that sec. 4 of the Succession Certificate Act should apply not only to a case where a person claims to recover money under the title of succession to the original creditor, but also to a case where upon the death of that person during the pendency of the suit some other person is substituted in his place as Plaintiff in the cause. In the second case, which turned upon the construction of cl. (b) of sec. 4, sub-see. (1), it was ruled, that when an application for execution bad been made by the judgment-creditor himself, and upon his death, his legal representative applied for leave to continue the execution proceedings, it was not necessary for the latter to produce a certificate. In the second case, which turned upon the construction of cl. (b) of sec. 4, sub-see. (1), it was ruled, that when an application for execution bad been made by the judgment-creditor himself, and upon his death, his legal representative applied for leave to continue the execution proceedings, it was not necessary for the latter to produce a certificate. It is not necessary for our present purposes to examine whether these views may not be open to criticism and whether they are not too broadly formulated [see Vasquez v. Pragji Hurji ILR 61 Bom. 519 (1892), where Farran, J., undoubtedly assumed that upon the death of the Plaintiff pendente lite, though the suit might be coutinued by his representative, a certificate in proof of his representative title must be produced, before a decree could be made]. It is sufficient to point out, that the cases cited are distinguishable. The present case turns upon the construction of cl. (a) of sec. 4, sub-sec. (1) which prevents a Court from passing a decree against a debtor of a deceased person for payment of his debt to a person claiming to be entitled to the effects of the deceased person. The Appellants are undoubtedly persons of this description, and they seek a decree against the debtor of their deceased father in respect of debt due to him. No doubt, the claim was included in the plaint by which the action was commenced, but the claim has not yet been investigated, and the application under sec. 90 is substantialiy one for a supplemental decree. It was pointed out by this Court in Purna Chundra v. Radha Nath 4 C.L.J. 141 at p. 147 : s.c. ILR 33 Cal. 867 (1906) that the object of sec. 90 is to obviate the necessity for a fresh suit, possibly in a Court, different from that which passed the decree for sale; the proceedings founded on an application under sec. 90 are a continuation of the original suit; the relationship of decree-holder and judgment-debtor created by the decree for sale is no longer of any benefit to the decree-bolder, and the parties are, therefore, again practically relegated to the position of the Plaintiff and Defendant. In this view of the matter, it is difficult to appreciate, upon what intelligible principle a case of this description should be excluded from the operation of cl. (a) of sec. In this view of the matter, it is difficult to appreciate, upon what intelligible principle a case of this description should be excluded from the operation of cl. (a) of sec. 4, sub-sec (1), the terms of which are undoubtedly comprehensive enough to cover the case. In our opinion the third part of the contention for the Appellants cannot be sustained. 5. The fourth head of contention for the Appellants is, that, as shown by the preamble to the Act, its object is to afford protection to parties paying debts to representatives of deceased persons, and as the Appellants were substituted in the place of their father in the decree for sale, they ought not to be called upon to produce a succession certificate. In our opinion, there is no force in this contention. No doubt, according to the decision of this Court, in the cases of Kanchan Modi v. Baijnath Singh ILR 19 Cal. 36 (1892) and Baid Nath v. Shamanand ILR 22 Cal. 143 (1894), the representatives of a mortgagee seeking relief against the mortgage property alone need not take out a certificate under the Act on the ground that such a suit is not for the recovery of the debt but for recovery of an interest in immoveable property. It was consequently possible for Appellants to obtain an order absolute for sale of the mortgaged property; but this fact does not lead to the inference that they are equally entitled to the balance of the' mortgage money; it is quite conceivable that the owner of the mortgage money might have made provision for the disposition of his estate so as to leave the immoveable property to one person and the money to another. No doubt, in the view taken by this Court of the scope of sec. 4, the debtor is not entitled to any protection, so far as the sale of land itself is concerned, but so far as the personal remedy is concerned, the law gives him protection, and there is no reason why he should be deprived of it. Besides there is no admission by the Respondent that the Appellants are the persons, entitled to the personal decree. But even if there were such an admission, the Court could not ignore the mandatory provisions of sec. 4. Besides there is no admission by the Respondent that the Appellants are the persons, entitled to the personal decree. But even if there were such an admission, the Court could not ignore the mandatory provisions of sec. 4. In such a case if the matter is brought to the notice of the Court in time, it Is the duty of the Court to stay its hand and to give effect to the clear legislative intent. See Santaji v. Raiji ILR 15 Bom. 105 (1890), where it was held by Sir Charles Sargent, C.J., that a certificate was necessary even in the case of a decree by consent. It was pointed out that the Succession Certificate Act of 1889 is meant to facilitate collection of debts by affording proof of representative title, and also for the protection of the revenue, and this is clear from the provisions of sec. 14. It is not necessary to consider, therefore, whether the principle of waiver would apply; if the object of the Act was not merely protection to the debtor, the provisions clearly could not be waived by him. [See Mis. App. 279 of 1906]. We must consequently hold that the fourth part of the contention for the Appellants cannot be maintained. 6. We may observe that the view we take of the applicability of sec. 4 to money decree on mortgages, is supported by the cases of Janki Bullaw v. Hafez Mahomed ILR 13 Cal. 47 (1886), Roghunath v. Poreshnath ILR 15 Cal. 54 (1887), Nawchand v. Yenana ILR 28 Bom. 630 (1904) and Palaniyandi v. Veerammal ILR 29 Mad. 77 (1905). In the first two cases, which were decided under Act XXVII of 1860, it was assumed, that the production of a certificate would not be necessary unless a personal decree was asked for on the basis of the mortgage. In the other two cases, which were decided under Act VII of 1889, it was ruled, that when a personal decree was prayed for and granted the requisition of a certificate as a condition precedent to such a decree is right. In these two cases, however, the mortgagee had died before the suit to enforce the security which was commenced by his representatives; this circumstance, as we-have explained in dealing with the third branch of the contention of the Appellant, does not affect the matter. 7. In these two cases, however, the mortgagee had died before the suit to enforce the security which was commenced by his representatives; this circumstance, as we-have explained in dealing with the third branch of the contention of the Appellant, does not affect the matter. 7. The fifth head of the contention of the Appellants is to the effect, that as they were members of a joint Hindu Mitakshara family with their father the right to realise the debt has vested in them by survivorship, and may be enforced without the production of a certificate. In answer to this contention, the learned vakil for the Respondent contended, that as held in Venkataramana v. Venkaya ILR 14 Mad. 877 (1890), to make this principle applicable, it must appear on the face of the bond, that the debt claimed was due to the joint family. It has been ruled, however, in the cases of Bissen Chand v. Chatrapat 1 C.W.N. 32 (1895), Bejraj v. Bhairo Prosad ILR 23 Cal. 912 (1896), Patesshvri v. Bhagawati ILR 17 All 578 (1895), Vethal v. Gotya 1 Bom. L.R. 197 and Pallamraju v. Bapanna ILR 22 Mad. 380 (1899), that it is not necessary that it should appear on the face of the bond, that it is a joint family debt; it is enough, if it is admitted or proved that the family is joint, for if this much is established, the presumption is that the debt is a family debt, and when such a debt has vested by right of survivorship no succession certificate need be produced. In the case before us, however, the Courts below have not investigated whether the mortgage debt was a joint family debt. We think in all the circumstances of this case, that the Appellants ought to be allowed an opportunity to have this matter determined. The result, therefore, is that this appeal must be allowed in part and the order of the learned District Judge discharged. The case will be remitted to him for determination of the question, whether the mortgage debt was a joint family debt. If this question is answered in the affirmative, the Appellants will not be required to produce any certificate. If it be answered in the negative, the Appellants will be afforded a reason able time to produce the requisite certificate. The case will be remitted to him for determination of the question, whether the mortgage debt was a joint family debt. If this question is answered in the affirmative, the Appellants will not be required to produce any certificate. If it be answered in the negative, the Appellants will be afforded a reason able time to produce the requisite certificate. We think they ought to be allowed this opportunity, because, even if their application were dismissed on the ground of their failure to produce a certificate, it would be open to them to apply again under sec. 90 of the Transfer of Property Act, for as held In the case of Rahamat Karim v. Abdul Karim 11 C.W.N. 674: s.c. 6 C.L.J. 119 (1907) no period of limitation is applicable to an application under sec. 90 for a personal decree against the mortgagor. We may add, however, that the Appellants will act wisely, if when the case goes back, they obtain a succession certificate so as to render unnecessary the discussion of any question in bar of their claim. Under the circumstances the Appellants must pay the Respondent his costs of this appeal.