Judgment N.L.Untwalia, J. 1. Plaintiffs opposite parties Nos. 1 and 2 obtained a preliminary mortgage decree against defendant No. 3 petitioner as also against others on 26th July, 1955. The decree was sealed and signed on 9th August, 1955. The property mortgaged was a milkiat share in certain tauzis. The plaint had described the mortgaged property in those terms, and the preliminary decree which followed the plaint also gave the description of the property mortgaged in terms of the milkiat share. It appears that the proprietary interest of the mortgagors vested in the State of Bihar on 1st January, 1956. Thereafter, a petition for amendment of the plaint as also of the preliminary decree was filed seeking to substitute me bakasht lands which, by operation of law under Sec. 6 of the Bihar Land Reforms Act, were said to have been transmuted into kasht lands, in the plaint as well as in the decree. This petition was rejected by the Court on 16th November, 1956. The plaintiffs filed an application thereafter on 5th August, 1958, for preparation of the final decree and asked the Court to describe the substituted security aforesaid in the final decree. The judgment-debtors objected to it. The learned, Munsif has held that in view of the recent Full Bench decision of this Court in Sukhdeo Das V/s. Kashi Prasad Tewari, 1958 BLJR 559 : ( AIR 1958 Pat 630 ), the plaintiffs are entitled to proceed against the bakasht lands which would have been deemed to have been settled with the mortgagors or their successors-in-interest under Section 6 of the Land Reforms Act and that the previous order rejecting the plaintiffs prayer for amendment of the plaint as also the preliminary decree will not stand as a bar in allowing their prayer in this proceeding for preparation of the final decree. The learned Munsif, however, has not gone into the merits of the case in the sense as to which properties or which bakasht lands can be said to be the substituted security in this case, although the defendant-petitioner before me had raised this objection in paragraph 4 of his objection petition filed on 13th March, 1959, which runs thus : "That the plaintiffs have again moved this court for passing a final decree for sale of alleged, bakasht lands which were neither in the mortgage nor they are included in the preliminary decree nor they are the bakasht lands because the tenants are In possession over the same and they are the kastkari lands of the tenants." 2. Mr. K.K. Sinha, learned Advocate for the petitioner, in view of the Full Bench decision referred to above could not contend that a mortgagee or a mortgagee decree-holder of the milkiat interest has no right to proceed against the substituted security in the nature of the bakasht lands transmuted into kasht. But, his main contention in support of this application are two, firstly, that this is a matter which ought not to be gone into at this stage : the description of the property in the final decree has got to follow that in the preliminary decree, and, secondly, that the rejection of the plaintiffs petition for amendment of the plaint and the preliminary decree will be a bar to allowing the plaintiffs prayer in the present proceeding for preparation of the final decree on the principles of res judicata. I am unable to accept either of these contentions. It is necessary to refer to a few passages from the decision of the Full Bench aforesaid. It is no doubt true that the matter in that case, so far as the question at issue is concerned, arose out of an execution proceeding, but it would be helpful to bear in mind the principle decided in that case. At page 575, column 2 (of BLJR) : (at p. 640 Col. It is no doubt true that the matter in that case, so far as the question at issue is concerned, arose out of an execution proceeding, but it would be helpful to bear in mind the principle decided in that case. At page 575, column 2 (of BLJR) : (at p. 640 Col. 1 of AIR), it is observed ; "If the mortgage security consists of an estate yielding cash income and comprising bakasht lands, there is no reason why the mortgagee will be forced to confine his remedy only to the compensation, payable and not to enforce the mortgage against the bakasht lands simply because on the vesting of tile estate they changed their character and constituted the raiyati lands of the ex-proprietor or ex-tenure holder." It will be useful to quote another passage from page 577 column 2 (of BLJR) : (at p. 641 Col 1 of AIR) : "In my considered opinion, the effect of Sec. 4 (d) read with Sections 3 and 6 of the Act is not to destroy the mortgage in its entirety, but only with respect to that part of the estate which has vested absolutely in the State and no interest therein is left with the mortgagor-proprietor or tenure-holder. In other words, the mortgage remains operative so far as the lands covered by the provisions of Sec. 6 are concerned as also the lands not corning within the mischief of the Act such as the original raiyati lands". And, ultimately, the ratio is to be found at page 586. Column 1 (of BLJR) : (at p. 646 Col 2 of AIR): "The State does not take over the bakasht lands of the proprietor, for, the interest in bakasht lands is saved under Sec. 4 (a), and under Sec. 6 it is retained by the proprietor. There is transmutation in the nature of the title. It must become a substituted security, and the altered title becomes available for the mortgagee to operate upon". There is transmutation in the nature of the title. It must become a substituted security, and the altered title becomes available for the mortgagee to operate upon". A preliminary mortgage decree for sale is passed in accordance with the provisions of Order 34, Rule 4 of the Code of Civil Procedure, and final decree tor sale follows if payment is not made within the time granted by the court under Sub-rule (3) of Rule 5 ot that order, which sub-rule reads thus : "Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in Sub-rule (1) of Rule 4". A question then arises that if the mortgaged property is not intact at the time of the passing of the final decree and has taken the form of some substituted security by operation of law or otherwise, can it be said that the Court passing the final decree has got to meticulously follow the description of the mortgaged property as given in the preliminary decree, and cannot substitute the substituted security instead? In my opinion, on the basis of the Full Bench decision, there cannot be any doubt that the mortgagee of a milkiat share can follow the substituted security of the kind, with which one is concerned in this case in execution of his decree. If the executing Court can go into this question and can proceed at the instance of the decree-holder against the substituted security, I find absolutely no reason in support of the submission of Mr. K. K. Sinha that the Court which is going to pass the final decree cannot do so. It is a well-settled principle of law that a suit wherein two decrees have to be passed -- one in the nature of preliminary and the other final -- the suit does not come to an end before the passing of the final decree, and the question which will be within the power of the executing Court to go into will be very much, rather more, within the power of the Court which has passed the preliminary decree and which will be passing the final decree to go into. I may rather observe that the more appropriate stage to properly describe the substituted security is the present stage where proceedings for preparation of the final decree are pending. Thereby, I do not mean to suggest that if this be not done at this stage, it will not be open to the executing Court to allow the decree-holder to levy execution against the substituted security. But, what I mean to say is that this is the more opportune and appropriate moment when this thing, if can be done, should be done. This view finds supports from the decision of Chatterji, J., in Kunja Behari Misra V/s. Bendudhar Panda. AIR 1942 Pat 185. Therein, the character and the nature of the property mortgaged had changed because of the sale of the property for arrears of revenue, and this had happened even before the institution of the suit. But" the prayer to include the substituted security was made in the proceeding for preparation of the final decree. Even in that situation his Lordship held : "If the property had been sold for arrears of revenue subsequent to the preliminary decree, ii could not be reasonably said that the Court in passing the final decree should follow the exact term of the preliminary decree. There can be no difference in principle simply because in the present case lot No. 2 had been sold for arrears of revenue before the institution of the suit." In a recent Full Bench decision of the Madhya Bharat High Court, Nabbobai V/s. Hasan Gani, AIR 1954 Madh-B 181, the matter arose in an execution proceeding. Under the Zamindari Abolition Act of the erstwhile Madhya Bharat State the estate had vested in the State. The substituted security available to the mortgagee decree-holder was in the nature of compensation money. But this change in the character of the property had taken place before the passing of the final decree. The question along with other matters mooted before the Full Bench was as to whether in such a situation the executing Court could permit the mortgagee decree-holder to proceed against the compensation money, and in that situation the Full Bench held: If before the final decree is passed mortgaged property is substituted by another security in the form of compensation money the matter could be viewed from two points of view. Either it is a case of one mortgaged property being substituted by another Security and a final decree directing payment out of this fund may be justified or treating the final decree as a determination that no payment had been made by the defendants towards the satisfaction of the amount determined by the preliminary decree, the Court executing the decree can regard the direction for sale to be superfluous in view of the fact that the mortgaged property is already converted into the form of money and proceed to apply the compensation money towards the satisfaction of the decree by reason of Section 73 (2), T. P. Act." "In my opinion, first course suggested above would be appropriate where no final decree has been passed. In that case, on an application made on behalf of the plaintiff the original court can award final decree against the substituted security. But, where final decree is already passed as against the original property the directions pertaining to the mortgaged property can appropriately be read as those pertaining substituted security by reason of Section 73 (2), T. P. Act and the court executing the decree can secure realization and application of the fund standing as substituted security. There is no just reason why the doctrine of substituted security cannot apply in execution." In my opinion, therefore, the substituted security, if any, in this case can be substituted and included in the final decree. 3. The question which now remains to be considered is as to whether the rejection of the plaintiffs petition for amendment of the plaint and the preliminary decree by substituting the substituted security in place of the original description of the property can stand as a bar in the way of the Court to give relief to the plaintiffs in these proceedings for preparation of the final decree. The important principle which has to be remembered for the application of the principle of res judicata is as to whether it can be said that by rejection of the plaintiffs previous petition by the order dated 16th November, 1956, the Court either expressly or by necessary implication, negatived the plaintiffs right to have the substituted security included in the final decree. The answer must be in the negative. The answer must be in the negative. In this particular case the character of the property changed after the passing of the preliminary decree, and, therefore, the Court was perfectly justified in refusing to amend the plaint or the preliminary decree, as this relief could be given to the plaintiffs in the present proceedings for the preparation of the final decree, or even after it, in the execution proceedings. But, rejection of the plaintiffs prayer for amendment of the plaint and the preliminary decree can, by no stretch of imagination, in my judgment, be tantamount, cither expressly or by necessary implication, to negativing the plaintiffs right to have the substituted security included in the final decree. The prayer for amendment or its rejection stands on a different footing, and here, on the application of the plaintiffs, the Court is to see as to whether it is competent to substitute the substituted security in place of the original mortgaged property in the final decree. I have said above that the Court is competent to do so, and I may repeat that that competency is not in the least affected by the previous order dated 16th November, 1956, rejecting the plaintiffs prayer for amendment. 4. The last submission made by Mr. K. K. Sinha is that, in any view of the matter, the Court should determine in the present proceedings as to whether there are any bakasht lands transmuted into kasht lands, that is to say, as to whether there is any substituted security in the form of lands available for the mortgagee, to operate upon in this particular case. I think, this submission has got force. The learned Munsif has not gone into this question, and on the view which I have taken above, it is clear that this question also should be appropriately gone into in this proceeding for preparation of the final decree and should not be left for being agitated hereafter in the execution proceedings. 5. In the result, I would hold that the view taken by the learned Munsif is correct, and I would, therefore, dismiss this application in revision, subject to this observation that he is directed to go into the contentious question between the parties as to whether any substituted security is available to be included in the final decree, and if so, what ? There will be no order as to costs in this Court.