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2017 (12) TMI 1236
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....urt in CWJC No. 1665/2009. The learned Single Judge has allowed the Writ Application and thereby accepted the prayer of the petitioners to quash the order dated 31.08.2009 passed by the Presiding Officer, Debts Recovery Tribunal, Patna in M.A.No. 07/2009 as also the order dated 19.04.2007 passed in OA (Ex.) Case No. 15/2006 and the resultant certificate issued by the Debts Recovery Tribunal, Patna in the said execution case for realization of a sum of Rs. 18,99,760.69 being the total of (i) decreed amount of Rs. 1,49,628.89 plus (ii) interest @ 14% per annum with quarterly rests from 01.02.1998 to 31.12.2005 amounting to Rs. 17,27,177.80 plus (iii) amount of cost awarded with subsequently incurred Rs. 22,954.00 with further interest @ 14% per annum with quarterly rests from 01.01.2006 till its realization against the respondents - judgment debtors from their person and properties. BRIEF FACTS OF THE CASE 3. It is an admitted fact that on 07.06.1983 Danapur Branch of the Bank sanctioned a Cash Credit Loan Limit of Rs. 70,000/- in favour of M/s. Kailash Art International (respondent no. 1), who happened to be a sole proprietorship firm owned by one Saryug Prasad Singh (respondent ....
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....n 02.02.2003 but no step for substitution was taken by the Bank. 7. During pendency of the execution case, the Special Statute, namely, Recovery of Debts Due to Bank and Financial Institution Act, 1993 (hereinafter referred to as 'the DRT Act') came to be amended on 17.01.2000; Section 31-A was introduced in the DRT Act which reads as under:- "31-A. Power of Tribunal to issue certificate of recovery in case of decree or order- (1) Where a decree or order was passed by any Court before the commencement of the Recovery of Debts Due to Banks and Financial Institutions (Amendment) Act, 2000 and has not yet been executed, then, the decree-holder may apply to the Tribunal to pass an order for recovery of the amount. (2) On receipt of an application under sub-section (1), the Tribunal may issue a certificate for recovery to a Recovery Officer. (3) On receipt of a certificate under sub-section (2), the Recovery Officer shall proceed to recover the amount as if it was a certificate in respect of a debt recoverable under this Act." 8. On 06.03.2006, the Bank filed an application under Section 31-A of the DRT Act giving rise to O.A (Ex.) Case No. 15/2006 before the Debts Recovery Tr....
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....he Debts Recovery Tribunal in entertaining an application under Section 31-A of the DRT Act and the maintainability of the said application were raised on the following grounds:- (i) that a preliminary decree in a mortgage suit is not an executable decree, it is executable only when a final decree is prepared for sale of the mortgaged assets for recovery of the amount under the mortgage and such decree in a mortgage suit cannot be treated to be a simple money decree, therefore, cause of action of a preliminary decree through the Debts Recovery Tribunal is not legally permissible; (ii) that the proceedings initiated by the Bank under Section 31-A of the DRT Act would be governed by Article 137 and hence the application filed on 06.03.2006 would be barred by limitation; and (iii) that the decree obtained by the Bank from the court of the learned Subordinate Judge III, Danapur was only for Rs. 1,49,628.89 plus interest @ 14% per annum with quarterly rests, therefore, the principal amount for which the property was mortgaged was less than Rs. 10 lakhs, hence, the jurisdiction of Debts Recovery Tribunal would not be attracted by merely leaving the decree unexecuted and then ....
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.... a preliminary mortgage decree which is not executable and enforceable. It is his further plea that because there is no specific Article provided in the Schedule of the Limitation Act, 1963 prescribing limitation for filing of an application for preparation of a final decree in terms of Order XXXIV Rule 5 of the Code of Civil Procedure, the same would be covered by the residuary Article 137 which provides a period of three years as limitation from the date when the right to apply accrued. According to the learned counsel for the judgment debtors-respondents, if the preliminary decree in the present case was passed on 21.04.1995 the application for final decree could have been made within a period of three years from the said date which was not done by the decree holder Bank, hence, there is no legally enforceable decree in existence. MAINTAINABILITY OF APPLICATION U/S. 31A OF THE DRT ACT 13. Based on the aforesaid submissions, learned counsel for the judgment debtors further submitted that if there is no legally enforceable decree in the name of the Bank, an application under Section 31A of the DRT Act could not have been filed. It was contended that a preliminary mortgage decre....
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....nd, hence, the application under Section 31A of the Act was well within limitation In his contention the composite decree in the present case was executable without the necessity of any final decree under Order XXXIV Rule 5 CPC, reliance was placed on several judicial pronouncements which we will refer while dealing with the submissions of the parties before us. FINDINGS IN WRIT 16. On consideration of the rival submissions, learned single Judge decided the various issues raised by the parties. We need not go in detail with respect to all those issues which have been decided against the petitioners-respondents, against which they have not preferred any appeal or raised any issue in appeal, but in order to give a complete view of the entire matter we are briefly taking note of some of the issues which have been decided. (i) Maintainability of an application under Section 31-A(1) of the DRT Act based on calculation of the amount under the decree including interest. Upon consideration of the decision of the Hon'ble Supreme Court in the case of Punjab National Bank (Supra), the learned single Judge concluded that it would be open to the Bank or financial institution to file an a....
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.... no hearing took place, shall not operate as 'Res Judicata'. (iv) Effect of non-substitution of deceased defendant no. 3- (judgment debtor no. 4) On this issue, on behalf of the Bank it was submitted that the question of nullity does not arise in an execution case as Order XXII Rules 4 and 5 does not apply. It was submitted that the Bank was not aware of the death of original defendant no. 3 which fact was concealed by the petitioners even in the execution case and by not disclosing it before the Debts Recovery Tribunal when they appeared before it they further concealed this fact. In support of the submission, learned counsel relied upon a Division Bench judgment of this Court in the case of Ram Chandra Prasad v. Jagarnath Prasad AIR 1983 BBCJ 154; paragraphs 4 and 5 which have been taken note of by the learned single Judge. Further reliance was placed on Abdus Sattar v. Mohini Mohan Das AIR 1933 Cal. 684. Learned single Judge concluded that the estate of deceased defendant no. 3 (judgment debtor no. 4) being represented through his son (judgment debtor no. 2) and wife (judgment debtor no. 3) who are on the record before the DRT it cannot be said that the certificate would be a....
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....ion because it was only for the execution of the preliminary mortgage decree. . ." (ii) Application for final decree barred by limitation. Learned single Judge having held that the decree dated 21.04.1995 was in the nature of a preliminary decree directing the defendants to pay the entire decreetal amount within 30 days from the date of passing of the order, further held that an application for final decree ought to have been filed within a period of three years from the expiry of 30 days from the date of the order in terms of Article 137 under the Schedule of the Limitation Act, 1963 which applies to such an application for preparation of final decree. Learned single Judge further stated- "No such application having admittedly been filed within the period prescribed, it is evident that the right to apply for a final decree and get the same executed became barred after 21.5.1998. Thus on 17.1.2000 when Section 31A was introduced in the Act, there was no subsisting decree or order of the Court which could be executed under the law by the respondent-Bank. That being the position no right could accrue to the Bank merely because of enactment of Section 31A since the decree had bec....
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....n the prescribed period of 30 days the same would be recoverable from the judgment debtors through execution of the same; (ii) that the decree dated 21.04.1995 nowhere states that the plaintiff had to apply for a final decree, rather the court passed a decree against the defendants as well and dispose of the suit itself, therefore, if no application for final decree which is under Order XX, Rule 6 and 7 of the Code of Civil Procedure was filed on behalf of the Bank, it was because of the contents of the decree, which is under Order XX, Rules 6 and 7 of the Code of Civil Procedure, hence, there is no question of applying a period of limitation and application for filing of a final decree, even if required, the period of limitation would not start running out on the expiry of 30 days from the date of the decree because the decree in the present case does not provide for filing of an application for final decree; (iii) that the learned single Judge while considering the nature of the decree dated 21.04.1995 himself held that it was not a properly worded (emphasis supplied) decree and liberty to the plaintiff-bank to realise the decreetal amount through the execution case against t....
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....question of limitation in filing of an application under Section 31A of the Act would be raised against the plaintiff-Bank; (vii) that the view taken by the learned single Judge that Execution Case No. 05/1996 was non est and invalid in law is not a correct view inasmuch as the language of the decree dated 21.04.1995 clearly states that the defendants would be liable for the dues determined by the court and if they fail to pay the same within a period of 30 days from the date of the decree, the same shall be recoverable through the process of execution, it is thus submitted that in the writ jurisdiction under Article 226 of the Constitution of India the learned single Judge was not correct in going behind the decree and interpreting it by adding or substituting something which is not there; (viii) that before the learned single Judge as well as before us in appeal, the Bank relied upon the judgment of the learned single Judge of Delhi High Court in the case of Laxmi Commercial Bank Ltd. v. American Rubber Mills Co. AIR 1972 Delhi 118, paragraphs 11, 15 and 17 of the judgment are quoted hereunder for a ready reference:- 11. A Bench of the Patna High Court in Lalji Bhagat v. Ba....
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....onstrue the decree in the present case to find out whether it is a decree to which Rule 5 would be attracted." "17. The compromise which resulted in the decree being passed sets out that a decree for recovery of money by instalments be passed. There is no bar to a decree under Order 34, Rule 4, Civil P.C.being passed in terms of a compromise extending the period allowed for payment in accordance with the wishes of the parties which is not limited to the period of six months prescribed by O.34, R 2(b). It was in terms of this prayer that the court passed a compromise decree under Order 34, Rule 4 Civil P.C. A reading of the decree in the present case brings it clearly within the ambit of the rule laid down by the Bench of the Allahabad High Court in AIR 1929 All. 881. The decree was passed on an application moved by the plaintiff-decree-holders under the provisions of Order 23, Rule 3, Civil P.C. The provisions in the decree for getting the pledged stocks released by payment of four instalments and the charge created on other immovable properties go to show that the decree was under Order 34, Rule 4, Civil P.C. and something more has to be done on report by the decree-holder that ....
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....r not. Having regard to the terms of the preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned, as to the necessity of having a final decree formally drawn up. The parties seem to have gone on all the years on the footing that the preliminary decree which was made absolute, was the formal expression of the final decree under R. 4 of O. 34, as from the date when it was made absolute. I am of opinion that, though the final decree has not been formally drawn up on the terms of the preliminary decree, which has been made absolute, that decree coupled with the order may be taken under the circumstances to be the final decree. In its ultimate analysis, it is only a formal defect. It is conceivable that a formal defect of this nature may lead to a real difficulty in the way of execution; and it is necessary to seek that even such a formal defect does not creep in, and that a formal decree is drawn up when the decree is made final. But, under the circumstances of this case, we are not prepared to hold that there is no executable decree. The resul....
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.... defendant No. 3 it can be executed only to the extent the mother inherited the estate of her son Shri Ajay Kishan Mehta. It is thus clear from the decree that it is a money decree against all the defendants (respondents) and a mortgage decree only against defendant No. 2 (respondent No. 2) so far as the shop is concerned. The decree does not put any fetter on the right of the decree-holder to execute it against any party, whether as a money decree or as a mortgage decree. The execution of the money decree is not made dependent on first applying for execution of the mortgage decree. The choice is left entirely with the decree-holder. The question arises whether a decree which is framed as a composite decree, as a matter of law, must be executed against the mortgage property first or can a money decree, which covers whole or part of decretal amount covering mortgage decree can be executed earlier. There is nothing in law which provides such a composite decree to be first executed only against the property. It will be noticed that there is no preliminary mortgage decree either. It is a final mortgage decree for sale of shop after three months. The decree is not in the prescribed Form....
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....is not an application in execution of the decree; but it is only an application in a pending suit. Thus, it is clear that the passing of a preliminary decree, does not terminate the suit and notwithstanding the preliminary decree, the suit is pending and the suit is terminated or comes to an end only by the passing of the final decree. A perusal of the various rules contained in Order 34 makes it clear that whatever the nature of the suit on a mortgage, in every suit that Order contemplates the passing of a preliminary decree in the first instance and thereafter the passing of a final decree. Therefore, it is clear that Order 34 itself expressly contemplates the passing of a final decree as the only method of terminating a suit in which a preliminary decree has already been passed. As far as the suit for partition is concerned, it has been held by several decisions that there is no period of limitation for passing a final decree. Similarly, an application for passing of a final decree in a suit for dissolution of partnership and accounts is also not governed by any period of limitation. However, as far as a suit on a mortgage is concerned, it has been held by Courts in this country....
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....itself does not appear to have been considered so far. I gave an opportunity to counsel on both sides to draw my attention to any decision which has considered this aspect to the matter; but the learned counsel on both sides represented to me that they were not able to come across any decision which has considered this question If the analogy of the partition suit is taken, once a preliminary decree declaring the shares of the parties has been passed, that suit is said to be pending till a final decree is passed. And there being no period of limitation prescribed for filing an application for final decree in such a suit, the suit will be pending till a final decree is actually passed and there is no compulsion on any of the parties to the preliminary decree to apply for a final decree within a particular time. This situation has been actually taken into account by this Court in framing the Civil Rules of Practice and Circulars Orders. In Rule 26, it is stated:- "26. Proceedings not to be adjourned sine die or struck off the file.- No suit, appeal, matter, or proceeding, shall, under any circumstances whatever, be adjourned sine die or struck off the file; and if, by inadvertence,....
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.... Order itself for extending the time so fixed. As a matter of fact, even in a case where a sale has already been ordered and has been held, there is a provision for payment of the amount due by the mortgagor before the confirmation of the sale. All these may indicate that the judgment-debtor has an opportunity of paying the amount not merely within the time prescribed under Order 34, rule 2 (1) read with rule 4 (1), Civil Procedure Code or within the extended time, but also even before the confirmation of the sale itself." 5. It is these features that are present in Order 34, which had been considered by Somayya, J., in Angammal v. Muhammad Sulaiman Lebbai [(1945) 2 M.L.J. 239 : 58 L.W. 492 : A.I.R. 1946 Mad. 38]. In that case, a preliminary decree for redemption of a usufructuary mortgage was passed on 15th October, 1935, and the time fixed for payment was 15th January, 1936. The plaintiff who was the mortgagor did not deposit the amount by the date fixed, nor did she ask for extension of time under Order 34, rule 7 (2) of the Civil Procedure Code. She deposited the amount towards the end of 1942 and then applied under Order 34, rule 8 of the Code asking the Court to pass a fina....
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....expressly given to him under rule 7(2) and under rule 8(1) of order 34, civil procedure code. The whole scheme of order 34, civil procedure code, is to give the mortgagor an opportunity of getting the time fixed in the preliminary decree for payment of the amount extended. In case of suits by the mortgagee for foreclosure or sale, provision is made for such extension at the instance of the mortgagor on his showing good cause. Rule 2(2) provides for such extension in a suit for foreclosure. Rule 4(2) provides for similar power in a suit for sale. Without the necessity of showing good cause, the mortgagor is also given by Rule 3 opportunity of paying the amount decreed at any time before a final decree debarring the defendant from all right to redeem the mortgaged property is passed. Similarly in suits for sale the code goes further and Rule 5 provides that such payment may be made at any time before confirmation of a sale held in pursuance of a final decree for sale." "Likewise in suits for redemption filed by the mortgagor we have Rule 7(2) corresponding to Rule 2(2) and Rule 4(2) enabling the plaintiff-mortgagor of getting an extension of time on showing good cause at any time b....
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....ation in the Limitation Act, to an application for passing a final decree, since the failure to apply for the passing of the final decree within the time prescribed by the Article does not terminate the suit, but only produces the anomalous situation of there being a fruitless preliminary decree and the suit itself pending permanently may have to be considered at the appropriate level. It is against the above background, I propose to consider the question that arises in the present case." 6. It is admitted that there is no direct authority of this Court on this point. The only direct authority which is available in this case is that of the Allahabad High Court in Qazi Ghulam Amir v. Mt. Masuda Khatum and Ors. A.I.R. 1943 All. 321. In that case, a preliminary decree fixed neither the amount due nor the date within which it should be paid. Under those circumstances, the question that arose for consideration was whether the application for passing a final decree can be said to have been barred by limitation under article 181 of the limitation act, 1908. The Allahabad High Court pointed out that in the absence of a date fixed for payment of the amount, it could not be said that there....
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.... considerations also will support the view taken by the Allahabad High Court already referred to and therefore, looked at from any point of view, the application filed by the appellant herein for passing a final decree for the sale of the property cannot be said to by barred by limitation." SUBMISSIONS ON BEHALF OF THE RESPONDENTS 21. On behalf of the respondents as well, the arguments made before the learned single Judge, have been reiterated before us. It has been submitted in the present case that the Execution Case No. 05/1996 was filed against the preliminary mortgage decree without realizing that a preliminary decree is not executable and enforceable. Learned counsel submits that the Bank could not have taken recourse to the provisions of Section 31A of the DRT Act, a preliminary mortgage decree was not enforceable and shall not come within the ambit of debt and, therefore, cannot be enforced under Section 31A for the purpose of recovery of the amount. Reliance in this regard has been placed upon the judgment of the Hon'ble Supreme Court in the case of Venkata Reddy v. Pothi Reddy AIR 1963 SC 992, paragraph 6 of the said judgment reads as under:- "6. . . . . . . It is no....
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.... counsel also relied upon another judgment of the Hon'ble Apex Court in the case of Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande AIR 1995 SC 1211, paragraph 12 of which is as under:- "12. As to Maksudans case (AIR 1983 Patna 105) (supra), we state that it had not been correctly decided. Limitation does not begin to run from the date when direction is given to pass final decree. Mere giving of direction to supply stamped paper for passing final decree does not amount to passing a final decree. Until the final decree determining the rights of the parties by metes and bounds is drawn up and engrossed on stamped paper (s) supplied by the parties, there is no executable decree. In this behalf, it is necessary to note that S. 2(a) of the Bombay Stamp Act, 1958, as amended by the local Act, provides that a decree of civil Court is required to be stamped as per Article 46 in Schedule-I. Section 34 thereof lays down that "no instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer u....
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....id to be a decree holder. This makes it clear that while dealing with an application under Sections 31 and 32 of the Act there is no decree or order of a civil court being executed. It was only on the basis of a legal fiction that the proceedings under Section 31 are treated as akin to execution proceedings. In fact this Court has observed that there is no decree to be executed nor there is any decree holder or judgment debtor and therefore in a strict sense it cannot be said to be a case of execution of a decree. Article 136 of the Limitation Act has no application in the facts of the present case. Article 136 specifically uses the words "decree or order of any civil court". The application under Sections 31 and 32 of the State Financial Corporation Act is not by way of execution of a decree or order of any civil court. 6. Article 137 of the Limitation Act applies in the facts of the present case. When Article 137 is applied, the application moved by the appellant-Corporation on 2nd January, 1992 for proceeding against the sureties i.e. the respondents herein, was clearly barred by time and the courts below were correct in holding so. To recall the facts of the present case, the....
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....CREE IN ORIGINAL SUIT' under Order XX Rules 6 and 7 of the Code of Civil Procedure in form Schedule XLII - High Court (J) 17[Old C.P.20] after reiterating the relevant statements made in the plaint as to the cause of action, value of the suit, jurisdiction and then the reliefs prayed in the suit, the operative part of the judgment reads as under:- "It is ordered and decreed that the Suit be decreed ex-parte with cost. The defendant is directed to pay the entire decretal amount within 30 days from the date of passing of Order failing which the Plaintiff may realize the decretal amount by filing of the execution case against the defendant at his cost. During pendente lite and future interest at agreed rate is also allowed. Reader fee and Pleader Clerk Rs. 100/- at the rate of usual ex-parte is also allowed." The decree as contained in Annexure-1 to the Writ Application has been prepared as per Form No. I & II provided under Appendix 'D' of the Code of Civil Procedure. 26. The learned single Judge has held that the title mortgage suit was decreed, therefore, the prayers made by the plaintiff have been allowed. With this interpretation of the judgment passed by the learned Subordin....
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....s and interest. (3) Power to decree sale in foreclosure suit-In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the court may at the instance of any party to the suit or of any other person interested in the mortgage security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in court of a reasonable sum fixed by the court to meet the expenses of the sale and to secure the performance of the terms. (4) Where, in a suit for sale or a Suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subrogated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require." "5. Final decree in suit for sale.- (1) Where, on or before the day fixed or at any time before the confirmation of a sal....
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...._ day, etc.; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this ____ day ofis the sum of Rs. ____ for principal, the sum of Rs. ____ for interest on the said principal, the sum of Rs. ____ for costs, charges and expenses (other than the costs of the suit) properly incurred by the plaintiff in respect of the mortgage-security, together with interest thereon, and the sum of Rs. ____ for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. 2. And it is hereby ordered and decreed as follows:- (i) that the defendant do pay into Court on or before the ____ day of ____ or any later date up to which time for payment may be extended by the Court, the said sum of Rs. ____ ; (ii) that, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit and such cost, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff shall bring into Court al....
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....uch directions as it thinks fit." 28. Apparently the language of a simple money decree as provided under Order XX Rules 6 & 7 of the Code of Civil Procedure and that of a preliminary mortgage decree in terms of Order XXXIV Rule 4 of the Code of Civil Procedure are totally different and distinct. In the present case, apparently though it was a mortgage suit but the court while considering the suit decreed the same and, therefore, in terms of Order XXXIV Rule 4 of the Code of Civil Procedure a preliminary decree should have been drawn in Form '5A' under Appendix 'D' C.P.C. but that was not done. The plaintiff Bank having found that the decree has been granted for the entire principle as well as the interest amount claimed by the Bank and that a direction was issued to the defendants to pay the decretal within a period of 30 days and in case of non-payment, the plaintiff Bank was given liberty to recover the same by filing an execution proceeding got contended with the said simple decree for money. The language of the decree, as contained in Annexure-1, leaves no doubt in our mind that it was not at all a preliminary mortgage decree as provided in Form 5A under Appendix 'D'. The decr....
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....he Bank was not given this opportunity to file an application for preparation of a final decree, there was no fault on the part of the Bank in not applying for preparation of a final decree. No doubt, law of limitation is based on a sound public policy but at the same time the court would not be willing to apply the rigours of the Limitation Act to defeat a just and valid claim of the Bank which has now crystalised on adjudication by a competent court of law. Applying principle of limitation in the facts of this case would amount to deprive the plaintiff Bank of the fruits of the judgment for no fault on its part. It would amount to giving undue benefit to the borrowers and the guarantors by construing a decree in original suit, as contained in Annexure-1, as a preliminary mortgage decree which is required to be issued in a title mortgage suit under Order XXXIV Rule 4 of the Code of Civil Procedure. In the present case, it cannot be said that an application for preparation of a final decree came to be barred by limitation after three years from the date of expiry of 30 days from the date of decree i.e. 21.04.1995. 30. Since we come to a conclusion that the learned single Judge has....
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...., "If the Court fails to discharge its duty, the general principle is that no litigant should suffer as a consequence of the failure of the Court or the mistake committed by the Court." In the said case, it was ultimately observed that "it would have certainly been open to the appellant herein to apply for amendment of the decree to the trial Court, so that the decree could be made in conformity with the requirements of Order 34 as well as Form 5-A already referred to. It is conceded that for applying for amendment of the decree, there is no period of limitation whatsoever." 33. The Hon'ble Bombay High Court in the case of Chhaganlal Sakarlal Vani (supra) while dealing with a case of omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned, as to the necessity of having a final decree formally drawn up found that the parties had gone on all these years on the footing that the preliminary decree which was made absolute, was the formal expression of the final decree under Rule 4 of Order 34, as from the date when it was made absolute. The Court was of the opinion that, though the final decree had not been formally drawn....
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.... 'D' to the Code of Civil Procedure and, therefore, the plaintiff Bank was not at fault in not applying for a final decree for sale of the mortgaged property. The plaintiff Bank was issued a simple money decree in terms of Order XX Rules 6 & 7 in the prescribed form and a bare reading of the said decree would show that the Court itself declared the decree executable. In our view, this is one of those cases where the result of allowing the contention of the respondents at this distance of time will be that a preliminary mortgage decree will have to be drawn formally now and a fresh beginning will have to be made in the way of execution after the lapse of so many years. That result may be avoided legally because we find that the terms of the decree, as contained in Annexure-1 which is sought to be executed, are very much ascertainable and, in fact, have been ascertained and there is no difficulty in executing the said decree because Section 99 of the Code of Civil Procedure would cover such an error or irregularity of this nature and also because it does not affect the merits of the case or the jurisdiction of the Court. 36. In ultimate analysis, for the reasons mentioned here-in - ....