C. V. RANE, J. ( 1 ) THE plaintiffs had filed a suit being civil suit No. 194 of 1966 in the court of the Civil Judge Senior Division Bhuj for the recovery of the amount due on the mortgage by sale of the mortgaged property. According to the plaintiffs the mortgage deed had been executed by one Metha Maganlal Himatram in favour of their grand-father. The defendant having died during the pendency of the suit his legal representatives were brought on record in due course. The defendants raised two preliminary objections in the trial court and they were that the court had no jurisdiction to try the suit and that the suit was not maintainable in view of the provisions of sec. 214 of the Indian Succession Act 1925 (hereinafter referred to as the Act) as the plaintiffs who were claiming under the will of the deceased mortgagee had not produced a probate of the will as contemplated by that section. As regards the first objection the learned trial Judge has held that he has jurisdiction to try the suit. However he upheld the second objection and gave time to the plaintiffs to obtain probate as contemplated by sec. 214 of the Act. Being aggrieved by the above order the plaintiffs have come in revision. ( 2 ) RELYING on the decision in the case of Nanchand Khemchand Gujar v. Yenawa (I. L. R. 28 Bombay 630) the learned Civil Judge has taken the view that the provisions of sec. 214 of the Act are not applicable to a suit on mortgage but according to him as the plaintiffs have claimed also a personal decree against the defendants the suit was not maintainable unless the plaintiffs obtained a probate of the will. ( 3 ) NOW sec. 214 of the Act are not applicable to a suit on mortgage but according to him as the plaintiffs have claimed also a personal decree against the defendants the suit was not maintainable unless the plaintiffs obtained a probate of the will. ( 3 ) NOW sec. 214 (13) (a) (b) (i) of the Act which is relevant for our purpose provides (1) No court shall- (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof or (b) proceed upon an application of person claiming to be so entitled to execute against such a debtor a decree or order for the payment of his debt except on the production by the person so claiming of (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased. Thus according to sec. 214 of the Act no decree can be passed against a debtor of a deceased person for payment of his debt nor can any such decree be executed against such debtor except on production by the person concerned of a probate etc. In the suit under consideration however the question of passing a personal decree against the mortgagor would arise at a later stage as would be evident from the provisions of Order 34 of the Civil Procedure Code. According to rule 4 of Order 34 of the Code in a suit for sale like the present one in the first instance a preliminary decree would be passed. If the defendant fails to pay the amount due under the mortgage within the time fixed for the purpose by the court in the preliminary decree the plaintiff will have to apply for a final decree for the sale of the mortgaged property as contemplated by rule 5 of Order 34 The question of passing a decree for the recovery of the dues from the other properties of the mortgagor would arise only in case the net proceeds of the sate held under rule 5 are found insufficient to pay the amount due under the mortgage and the plaintiff makes an application for recovery of the balance under rule 6 of the above order. It will thus appear that the court has to first pass a preliminary decree as contemplated by rule 4 and that in the event of failure on the part of the mortgagor to pay the amount due under the preliminary decree a final decree for sale of the mortgaged property will be passed. Thus looking to the scheme of Order 34 of the Civil Procedure Code a decree under rule 4 or 5 thereof cannot be treated as a decree against a debtor for payment of his debt within the meaning of sec. 214 of the Act and in that view of the matter the want of production of probate etc. would not be a bar for passing decrees under rules 4 and 5 of Order 34. ( 4 ) THE above view does not in any way conflict with the decision in the case of Nanchand Khemchand Gujar (supra) which does not seem to have been properly interpreted by the learned Civil Judge. According to the above decision the provisions of sec. 4 of the Succession Certificate Act (VII of 1889) which are more or less similar to those of sec. 214 of the Act so far as clauses (a) and (b) of sub-sec. (1) are concerned do not apply to a suit for a sale on a mortgage. It appears from the aforesaid decision that the High Court of Bombay has preferred the view of the Calcutta High Court in the case of Baidnath Das v. Shamanand Das (I. L. R. 22 Cal. 143) and two other cases to that of the Full Bench of the Allahabad High Court in the case of Fatehchand v. Muhammad Baksh (16 All. 259 ). Giving reasons for preferring the view of the Calcutta High Court according to which the necessity of succession certificate under sec. 4 of the Act is limited to those suit where the court is called upon to pass a personal decree against a debtor of a deceased person for payment of his debt and no such certificate is necessary for the purpose of a suit for a sale on a mortgage their Lordships have observed in the above case:-IF the Allahabad Full Bench intended to hold that sec. 4 of the Succession Certificate Act applied only to such a suit for a sale on a mortgage and not to every suit for a sale their ruling should not conflict with the view of the Calcutta High Court as to the applicability of that section. Having regard then to the fiscal character of the Succession Certificate Act and the language of sec. 4 we have arrived at the conclusion that the interpretation put upon that section by the Calcutta High Court is correct. It may be that as the Allahabad Full Bench point out a mortgagor B needs as much protection as any other debtor when sued for a debt by a person claiming to be entitled to the effects of his deceased creditor; but on the other and as to this question of protection there is a difference between a mortgagor who has made himself personally liable to pay and also mortgaged his property as security. for the debt and one who has made the property alone security therefore. In the former case he may be sued by one who may not be the legal representative of the creditor and in that case he may have to pay twice over if the rightful their sues without being able to recover from the wrong person if the person be insolvent In the latter if a wrong person sues and obtains a decree and sells the property the rightful heir cannot enforce payment from the mortgagor but must hold the property alone liable and the property remains liable all the same. The mortgagor is no loser and needs no protection. It has also held that sec. 4 of the Succession Certificate Act would apply to a personal decree if the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due under the mortgage. There is nothing in the above decision to show that a preliminary decree under rule 4 and a final decree for the sale of the mortgaged property as contemplated by rule 5 of Order 34 of the Civil Procedure C de cannot be passed without the production of a succession certificate. There is nothing in the above decision to show that a preliminary decree under rule 4 and a final decree for the sale of the mortgaged property as contemplated by rule 5 of Order 34 of the Civil Procedure C de cannot be passed without the production of a succession certificate. It is thus found that the view of the learned trial Judge that as the plaintiffs have also asked for a personal decree against the mortgagor the suit cannon be proceeded with without the production of the probate of the will is erroneous. Even according to the decision of the Full Bench of the Lahore High Court in the case of Lachhman Singh v. Natha Singh (A. I. R. 1940 Lahore 401) in which the decision in the case of Nanchand Khemchand (supra) has been followed a succession certificate under sec. 214 of the Act is not necessary for maintaining a suit by a mortgagee for recovery of the amount due by sale of the mortgaged property. ( 5 ) THE Division Bench of the Calcutta High Court has also taken a similar view in the case of Baid Nath Das v. Shamanand Das (supra) to which a reference has been made in the above decision of the Bombay High Court. In the above case to enforce a mortgage bond the plaintiff prayed that the amount might be decreed to be paid within a fixed time together with costs of the suit and that in case of non-payment the mortgaged property should be sold and the amount realised from the sale proceeds and if they should be insufficient the balance should be recovered from the defendant personally and from his other properties. One of the contentions that was raised in the above case was that the plaintiff was not entitled to get a decree without a certificate of succession as provided by sec. 4 of the Succession Certificate Act. One of the contentions that was raised in the above case was that the plaintiff was not entitled to get a decree without a certificate of succession as provided by sec. 4 of the Succession Certificate Act. While negativing the above contention it has been observed by the Calcutta High Court:-IN the present case no decree was passed by the court below against the debtor personally and the only relief that has been granted by that court to the plaintiff is a relief against the property mortgaged; and though no doubt the property is liable to be sold only in the event of the defendant failing to pay the money due under the mortgage by the time fixed by the court it could hardly be said that that is a decree against the debtor for payment of his debt properly so called. In view of what is stated above it becomes evident that sec. 214 of the Act is not applicable to suits on mortgage like the present one and that the question of obtaining a probate of the will would arise only at the time of passing a personal decree against the mortgagor. In that view of the matter the order passed by the learned Civil Judge on 13-2-1968 cannot be sustained. I therefore set aside the above order and direct that the learned Civil Judge should proceed further with the suit and dispose it of according to law in the light of what is stated above. Rule is accordingly made absolute. The respondents to pay the costs of the petitioners. .