that case and a case like the one before us has been pointed out by the learned Judges who decided the case of Roghu Nath Shaha v. Poresh Nath Pundar I. L R. 15 Cal. 54 and that distinction lies in this: that in the case of Janaki Ballav Sen v. Hafiz Mohamed Ali Khan I.L.R. 15 Gal. 54a personal decree was asked for, but here no personal decree was asked for and no personal decree was given by the Court of First Instance. Section 4 says: "No Court shall pass a decree against a debtor for payment of his debt," and so on. A mortgagee might ask for a decree against the person of the debtor; but the Court is not bound to make a personal decree: It might, if the facts permit, make a decree only against the property mortgaged by the defendant; and in the circumstances of the present case it was quite open to the Court of First Instance-- In fact, it was its duty--to refrain from making a personal decree and to pass a decree charging the property in the hands of the defendants, 2nd party, for satisfaction of the claim of the plaintiffs. The relief that the plaintiffs asked for in this suit was not for recovery of the debt but, as observed by Sir Barnes Peacock in the Full Bench decision in Surwan Hossein v. Shahazdah Golam Mahomed 9 W.R. 170 it was a suit for the recovery of an interest in Immovable property. The question that the learned Judges had to decide in that case was no doubt a different question; it was one of limitation, but we take it, as it has always been understood in this Court, that a suit to enforce a charge against Immovable property is a suit for the recovery of an interest in Immovable property; and if that be the correct view to take, it seems to be obvious that the plaintiffs were entitled, not with standing the absence of a certificate under the Succession and Certificate Act, to sustain the decree that had been pronounced in their favour by the Court of First Instance, that being a decree charging the Immovable property in the hands of the 2nd party defendants.
