1. Section 4 of the Succession Certificate Act has been construed by the Calcutta High Court as limiting the necessity of a certificate under the Act to those suits where the Court is called upon to pass a personal decree against a debtor of a deceased person for payment of his debt and as not applying to a suit for a sale on a mortgage: see Kanchan Modi v. Baij Nath Singh (MANU/WB/0006/1892 : 1892) 19 Cal. 336; Baid Nath Das v. Shamanand Das (1884) 22 Cal. 143; and Mahomed Yusuf v. Abdur Rahim MANU/WB/0069/1899 : (1899) 26 Cal. 839.

2. A Full Bench of the Allahabad High Court has, on the other hand, held in Fateh Chandy. Muhammad Bakhsh (1894) 16 All. 259 that the section applies also to a suit for sale on a mortgage. There is no decision of this Court directly in point. Santaji Khanderao v. Ravji (1890) 15 Bom. 105 was a case where the suit was for a personal decree against the defendant and also for a sale of the mortgaged property, and the only point decided was that a consent decree is a decree against a debtor, within the meaning of section 4 of the Succession Certificate Act. That decision is, however, useful for the purpose of the point now before us inasmuch as it was held there that the Succession Certificate Act was "intended for revenue purposes as well as to facilitate collection of debts." Being partly a fiscal Act, it must be construed strictly, and the words in section 4, vie., "a decree against a debtor" must be interpreted prima facie to mean a personal decree. The reasoning of the Allahabad Full Bench, however, is that "money lent on the security of a mortgage is a debt due from the mortgagor to the mortgagee, although from the terms of the contract it may not be recoverable from the mortgagor personally or except by a decree for sale of the mortgaged property. A mortgagee who brings his suit for sale is bringing, his suit against his debtor, the mortgagor, for, payment of his debt, and the decree which he seeks in that suit is a decree for payment of his debt by sale of the mortgaged property (1894) 16 All., p. 267." Assuming that such a suit is one for the payment of a debt, still the payment has to be made not by the debtor but by sale of the mortgaged property. In other words, it is the property which the suit seeks to, and the decree does, make liable, whereas what section 4 provides is that "no Court shall pass a decree against a debtor for payment of his debt." It is true, as pointed out in their judgment by the Allahabad Full Bench, that "a decree for sale under section 88 of Act IV of 1882 (The Transfer of Property Act, 1832) orders that "an account be taken of what will be due to the plaintiff for principal and interest on the mortgage," or the decree for sale declares "the amount so due at the date of such decree." The decree for sale also orders that in default of the defendant paying the amount found or declared to be due "the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale (after defraying there out the expenses of the sale) be paid into Court and applied in payment of what is so found due to the plaintiff, &c." And the Allahabad Full Bench infer from this language of section 88 of the Transfer of Property Act that "a suit for sale is a suit in which, if the plaintiff succeeds, the decree which the Court passes is one form of a decree for payment of a debt." It may be a decree for payment of the debt, but the question is--Payment by whom So long as the decree does not direct the defendant to pay the debt, but merely provides that if he does not pay, the mortgaged property shall be sold in satisfaction of the debt, it cannot, we think, without straining the language of section 4 of the Succession Certificate Act, be said to be a decree against the debtor. Had the Legislature intended that the section should apply to a suit for a sale on a mortgage, they would have used apt words to convey that meaning. If it were correct to say that because a decree which the Court passes in a suit for a sale on a mortgage is one form of a decree for payment of a debt, therefore, it must be regarded as a decree against the debtor within the meaning of section 4 of the Succession Certificate Act, the same process of reasoning ought to apply to decrees for foreclosure as well. A foreclosure decree may also be regarded as one form of a decree for payment of a debt. But the Allahabad Full Bench in their judgment concede that a suit for foreclosure cannot in any, sense be considered as a suit for a decree for payment of a debt. In one sense, no doubt, every suit on a mortgage, including a suit where a personal decree is sought against the mortgagor, may be regarded as a suit for a decree for payment of a debt. But it is one thing to pass a decree against the debtor and another to pass a decree against the property mortgaged by him. The Transfer of Property Act itself makes, a distinction between a suit where a debt is recoverable from the debtor and one where it can be recovered by a sale of his property mortgaged for the debt. See section 58, the definition of a simple mortgage and of an English mortgage, and section 90. This last section is referred to in the judgment of the Allahabad Full Bench in support of their view that a suit for a sale on a mortgage is one in which the Court is called upon to pass a decree for payment of a debt within the meaning of section 4 of the Succession Certificate Act. But section 90 provides that where under a decree for a sale, the mortgaged property having been sold, "the net proceeds of any such sale are insufficient to pay the amount due for the time being on the mortgage, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may, pass a decree for such sum." A decree so passed is undoubtedly a personal decree against the debtor which entitles the decree-holder to attach and sell in execution property belonging to the judgment-debtor but not mortgaged for the debt. To that section 4 of the Succession Certificate Act must apply. But it does not follow that such a decree can be passed in every suit for a sale upon a mortgage. Section 90 of the Transfer of Property Act restricts it to cases where "the balance is recoverable from the defendant otherwise than out of the property sold"--only where, that is, the defendant by his contract or otherwise is personally liable for the payment, partly or wholly, of the debt. If the Allahabad Full Bench intended to hold that section 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 section 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 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 hand, 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 heir 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.

3. We think, therefore, that the lower Appellate Court is right in holding that a succession certificate was not necessary in the present case, and we confirm the decree with costs.