JUDGMENT Clough, J 1. This is an application for execution of a preliminary mortgage decree for sale. The circumstances in which it has been made are as follows:-- The Defendants mortgaged in favour of the Plaintiff premises No. 13/1. Uma Charan Das Lane, Calcutta, and No. 1, Gorasthan Lane, Karaya. A suit was filed and on 6th April, 1938, the Plaintiff obtained the usual preliminary decree in terms of Form No. 5 of Appendix D of the Code of Civil Procedure. This decree ordered the taking of accounts, report by the Registrar of the amount found due, and countersignature of the report by a Judge; and, in clause 5 it ordered and decreed That the Defendants or any one of them do pay into Court to the credit of this suit within six months from the date of such counter-signature or any later date upto which time for payment may be extended by the Court such sum as may be found due and the taxed costs of the Plaintiff ... In cl. 6 it ordered and decreed-- That in default of payment as aforesaid of the amount due to the Plaintiff, the Plaintiff shall be at liberty to apply to the Court for a final decree that the mortgaged properties or a sufficient part thereof shall be sold...... And thereafter follow other usual provisions to which it is not necessary to refer. 2. On 23rd April, 1940, the Registrar reported that a sum of Rs. 15,093-3-2 was due and payable to the Plaintiff, and the report was thereafter counter-signed by the Judge. 3. The Defendants failed to pay the reported amount into Court within six months of the Judge's counter-signature. The Plaintiff, however, did not take advantage of this default. No application for a final decree was ever made, and it is conceded by Counsel appearing for the Plaintiff, who is the Petitioner before me, that the Plaintiff is bound by the decision of McNair, J., in Sisir Kumar Ghosh v. Srish Chandra Sinha 43 C. W. N. 537 (1939) and that on the date when this notice of motion was taken out any application for a final decree was beyond the time mentioned in Art. 181 of the Indian Limitation Act and that such an application was time-barred. 4. 4. There is a prayer in the notice of motion "for extension of time, if necessary, for payment of the money into Court." This is for the purpose of saving limitation, and Counsel for the Petitioner contends that such an order may be made under Or. 34, r. 4 (2) of the Code of Civil Procedure. The provisions of Or. 34, r. 4 (2), are as follows:-- The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. 5. This power to extend the time is intended to be for the benefit of the mortgagor. Until its introduction the position was somewhat illogical, for it was held that if the mortgagor failed to pay on or before the date fixed, the Court had no power to extend the time for payment, but was bound to pass a final decree for sale. Yet it was held that even if time was not extended the mortgagor on payment of the amount due and costs was entitled to stop the sale under Or. 21, r. 69 and was entitled, if the property was sold, to avail himself of the provisions of Or. 21, r. 89, and have the sale set aside on making the deposit contemplated in that rule. The addition of a provision for extension of time for payment removed the existing anomaly. 6. In this case it is the mortgagee who is asking for extension of the mortgagor's time to pay in; and he asks it at a time when his right to apply for a final decree is already barred. No facts are shown in the petition why an extension of time should be allowed, and prayer (b) of the notice of motion cannot be acceded to. 7. Being barred by time from applying for a final decree the Petitioner has taken out this notice of motion, prayer (a) of which is for order enforcing the preliminary decree and/or order to pay the reported amount into Court in accordance with a tabular statement filed with the notice. In col. 7. Being barred by time from applying for a final decree the Petitioner has taken out this notice of motion, prayer (a) of which is for order enforcing the preliminary decree and/or order to pay the reported amount into Court in accordance with a tabular statement filed with the notice. In col. 10 of the tabular statement the mode in which the assistance of the Court is required is that the decretal amount be realised by the attachment and sale of No. 13/1, Uma Charan, Das Lane and of No. 1, Gorasthan Lane, Karaya. 8. That is to say attachment and sale of the two mortgaged properties. 9. Put very shortly, the argument on behalf of the Petitioner is as follows:--The definition of "decree" contained in sec. 2 (2) of the CPC expressly includes a preliminary decree. It is provided in sec. 51 of the Code that, subject to such conditions and limitations as may be prescribed, the Court may order execution of a decree by several methods including attachment and sale of any property Or. 21, r. 30, provides that every decree for the payment of money may be executed by the attachment and sale of a judgment-debtor's property ; and in sec. 60 of the CPC mortgaged property is not excluded from liability to attachment and sale in execution. Therefore, urges the Petitioner, the Court can and should order execution of a preliminary mortgage decree or rather that part of it which directs the payment of money, by attachment and sale of the mortgaged premises. No authority has been cited in favour of this proposition which, if it is sound, would seem to do away altogether with the necessity of obtaining a final decree in a mortgage suit for sale. On the other hand, I have been referred by Counsel for the Respondents to a number of cases where it has been expressly observed that a preliminary decree is not executable. 10. In Mst. Arunbati Kumari v. Ramniranjan Marwari A. I. R. [1921] Pat. 320 which is an appeal before Das and Adami, JJ., in a mortgage suit for sale a decree had been passed by consent which was not in accordance with Or. 34, r. 4. After ascertaining the liability of the debtor it gave a certain time to pay and the consent decree itself provided for realisation thereafter out of the property. 320 which is an appeal before Das and Adami, JJ., in a mortgage suit for sale a decree had been passed by consent which was not in accordance with Or. 34, r. 4. After ascertaining the liability of the debtor it gave a certain time to pay and the consent decree itself provided for realisation thereafter out of the property. It was contended on behalf of the judgment-debtor that such a decree was not executable, and that as the suit had been a mortgage suit a final decree must be obtained. Das, J., observed as follows :-- I accede to the proposition that, if a decree has been passed in accordance with Or. 34, r. 4, then such a decree is incapable of execution until the final decree has been passed under the provision of Or. 34, r. 5. 11. He then went on to point out that the particular consent decree which had been passed was itself executable. It was in fact a final and not a preliminary decree. 12. In Hemendra Lal Singh Deo v. Fakir Chandra Datta I. L. R. 50 Cal. 650 (1923), a mortgage suit had been compromised in the Court of Appeal and a consent decree passed which ascertained the amount due, gave two years' time within which to pay, and provided that in default of payment within that time the sum was to be realised by sale of the mortgaged properties. An application was made for execution, and at p. 656 occurs the following passage in the judgment of the Court, the members of which were Mr. Justice Panton and Mr. Justice Ghose: If it (the consent decree) was merely a preliminary decree in a mortgage suit, then obviously it follows that before execution could be levied, an order under Or. 34, r. 5, C. P. C., making the preliminary decree final had to be obtained. 13. In Kanniah Naidu v. Chengama Naidu A. I. R. [1917] Mad. 844 which was an appeal before Sadasiva Aiyar and Moore, JJ., a transferee of a preliminary mortgage decree for sale had applied for execution and also for the passing of a final decree. In the judgment the Court observed: But there is at present no executable decree, because only a preliminary decree under Or. 34, r. 4 has been passed in the suit. The present petition No. 1032 of 1912 in Col. In the judgment the Court observed: But there is at present no executable decree, because only a preliminary decree under Or. 34, r. 4 has been passed in the suit. The present petition No. 1032 of 1912 in Col. 10 admits that a final decree has to be passed, as it prays for the making of the decree final. Till a final decree is passed, the suit is pending. The date of preliminary decree is 24th November, 1911. The date fixed for payment is 24th February, 1912. Under Or. 34, r. 5, Cl. (2), when the payment is not made, the Plaintiff has to make an application to pass the final decree for sale. The application for execution, therefore, was premature and as there is a prayer for passing a decree for sale, the Appellant ought to have been asked to amend the petition as an application under Or. 34, r. 5, Cl. (2) C P. C. 14. The correctness of the foregoing observations to the effect that a preliminary decree for sale is not executable, cannot, I think, be questioned. The whole decree must be looked at, and not only that part of it which orders payment into Court. The decree takes the form it does because of the provisions of Or. 34, r. 4, C. P. C., which provides that in a successful suit for sale the Court shall pass a preliminary decree ordering accounts of the Plaintiff's dues, declaring the amount due, and directing that if the Defendant pays into Court the amount so found within a specified time, the Plaintiff shall deliver to the Defendant or his nominee the documents relating to the mortgaged property, and shall, if so required, retransfer the property to the Defendant free from the mortgage and all incumbrances executed by the Plaintiff; and providing further that in default of the Defendant making the payment specified the Plaintiff shall be entitled to apply for a final decree directing sale of the mortgaged property. 15. The preliminary decree provides within itself the right which is consequent upon failure to pay the sum ordered to be paid. The decree contains a default clause, and in effect gives the judgment-debtor two alternatives. He may either comply with the first demand or he may default and suffer the consequences specified. But the choice is his. 15. The preliminary decree provides within itself the right which is consequent upon failure to pay the sum ordered to be paid. The decree contains a default clause, and in effect gives the judgment-debtor two alternatives. He may either comply with the first demand or he may default and suffer the consequences specified. But the choice is his. In the case of a preliminary mortgage decree for sale the specified consequence for default is that the decree-holder acquires a right to apply for a final decree for sale of the mortgaged property. That right can be lost, for example, by time, as has occurred in this case. But a loss, if it occurs, does not entitle the decree-holder to enforce against the judgment-debtor the first alternative, upon default of which the lost right accrued. It is only by omitting to look at the preliminary decree as a whole, and by seeking to read the order to pay as if it stood alone, that an argument that the order to pay is executable can be advanced at all. If the preliminary decree is looked at as a whole, it is obvious at once that it puts the judgment-debtor in a position which is quite inconsistent with the payment order being executable. 16. The Petitioner has contended that in this application the relevant Article of the Limitation Act is Art. 183, but in view of the conclusion which I have arrived at it is not necessary to consider this. For the reasons I have mentioned the application is dismissed with costs.