TaxTMI 
TaxTMI 
2017 (12) TMI 1236
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....3 passed by a learned Single Judge of this Court 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 fi....
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....r of the respondent no. 2 in the present appeal died on 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....
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....ed 19.04.2007 passed by the Debts Recovery Tribunal, Patna and an issue as to jurisdiction of the 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, ....
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....arned single Judge, learned counsel representing the judgment debtors-respondents mainly argued that the decree in the present case is 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 o....
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....hin a period of 12 years from the date of decree, as envisaged under Article 136 of the Schedule of the Limitation Act, 1963, was not barred and, 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 Suprem....
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....refore, the second application for execution before the Debts Recovery Tribunal was maintainable. Learned single Judge agreed that dismissal of the execution case in default, when 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 deb....
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....ould not satisfy the decreetal amount with interest and cost etc. Thus, according to me, the Execution Case No. 05/1996 was non est and invalid in law and could not have been carried into effect as an execution 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 subs....
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....ee dated 21.04.1995 is a composite decree inasmuch as not only it determines the actual amount due to the Bank and recoverable from the judgment debtors but also states that in case of failure of the judgment debtors to pay the said amount within 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 th....
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.... 17.01.2004 when the Execution Case No. 05/1996 came to be dismissed in default. The application under Section 31A was filed within a period of twelve years from the date of decree which is in accordance with Article 136 of the Schedule of the Limitation Act, 1963 and, hence, no 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....
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....y although the decree may authorize the decree-holder to realize the decretal amount by sale of the judgment-debtor's property. Where, however, the property is charged with the payment of the decretal amount the proper mode of realizing the decretal amount is to obtain a decree absolute for sale. We have thus to construe 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....
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....or a sufficient part thereof, be sold. And when an order making the decree absolute is made, the final decree has to be drawn up. The question that now arises is whether, at this distance of time, nearly fifteen years after the decree, and twelve years after the order making the decree absolute was made, the execution can go on or 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 d....
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.... institution of the suit till its realisation. There is also a decree passed in favour of the Bank entitling it to sell the shop in case decretal amount is not paid within three months from the date of the decree and the decree specifically mentions that it will be deemed to be a personal decree against all the defendants (respondents). Only qua 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 ....
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....on certain admitted and well-settled principles. Not merely a suit on a mortgage, but also a partition suit as well as a suit for dissolution of partnership and accounts involve the passing of a preliminary decree in the first instance and thereafter a final decree. Another principle that has been settled is that an application for passing a final decree in the suits mentioned above 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 fo....
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.... passing of the final decree. In a suit on a mortgage, after the passing of the preliminary decree, if the decree-holder-plaintiff does not apply for the passing of final decree within the period prescribed by Article 181 of the old Limitation Act or Article 137 of the new Limitation Act and on that ground the said application is dismissed as barred by limitation, what happens to the pending suit 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 with....
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....e suit not being able to realise the fruits of the decree which he obtained under the preliminary decree. I may also mention in this context that even though Order 34, rule 2 (1) read with rule 4 (1), Civil Procedure Code contemplates a Court fixing a date within 6 months before which the amount determined by the Court or declared by the Court should be paid by the mortgagor, at every stage, there is provision in that 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 redempt....
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....e suit cannot afterwards be dismissed for non-prosecution and must be kept pending. The same result may follow in cases of redemption suits where after a preliminary decree, no action is taken by the parties. It may well be that as the rights of the parties are declared by the preliminary decree, the suits cannot be dismissed for non-prosecution." "Whatever that may be, so long as the suit is pending, the mortgagor has the right 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....
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....t the decree-holder had not applied for a final decree. The general question, when a preliminary decree has been passed, the suit is still pending and there is no provision in the Code of Civil Procedure for dismissing the suit after the preliminary decree on the ground that the decree - holder has not applied for the passing of the final decree, whether there is any justification at all for applying any Article prescribing a particular period of limitation 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.....
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.... applying for amendment of the decree, there is no period of limitation whatever. Therefore if the appellant had first applied for an amendment of the decree and had got the decree amended and thereafter, on default committed by the respondents herein to pay the amount within the date fixed by the amended decree, made the application for passing the final decree, it could not be said that the present application filed by the appellant herein was barred by limitation. These 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 hav....
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....s a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree." 22. Learned 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 ....
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.... is a sine qua non for invoking Article 136. The proposition set out in the case of Gujarat State Financial Corporation (supra) found support in M/s. Everest Industrial Corporation and Others v. Gujarat State Financial Corporation 1987(3) SCC 597. Again in Maganlal etc. v. Jaiswal Industries Neemach & Ors. 1989 (3) SCR 696 this court noticed that an order under Section 32 is not a decree stricto sensu as defined in Section 2(2) of the Code of Civil Procedure, the financial Corporation could not be said 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 applic....
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.... issues which were raised on behalf of the judgment debtors - respondents before the learned single Judge but were rejected such as the plea of res judicata and nullity of decree due to death of judgment debtor no. 3. Both the sides have centered and concentrated their arguments on the issue of real construction of the decree dated 21.04.1995, therefore, we would first take note of the terminology of the decree in question. It appears from Annexure-1 to the Writ Petition that it is clearly written at the top 'DECREE 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 ....
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....the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same. (2) The court may, on good cause shown and upon terms to be fixed by the court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses 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, subseque....
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....by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance." 27. Form No. 5A under Appendix 'D' of the Code of Civil Procedure specifically provides the language in which a preliminary decree for sale under Order 34 Rule 4 - (When the Court Declares the amount due) is to be drawn. It would be just and proper to take note of the complete Form 5A under Appendix 'D' of the Code of Civil Procedure as under:- "No. 5A PRELIMINARY DECREE FOR SALE (Order XXXIV, rule 4.-When the Court declares the amount due.) (Title) This suit coming on this ____ 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 ....
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....alance, if any, shall be paid to the defendant or other persons entitled to receive the same. 5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the Court may give such 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 prelimina....
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....ree is not properly worded came to a conclusion that the plaintiff Bank having not filed an application for preparation of a final decree in terms of Order 34 Rule 5 C.P.C. within a period of three years from the date of expiry of 30 days which was prescribed to the defendants for payment, an application for final decree became barred by law of limitation in terms of Article 137 of the Limitation Act, 1963. To me, it appears that there is no question of applying the law of limitation for preparation of a final decree because the plaintiff Bank was not given a preliminary mortgage decree in terms of Order 34 Rule 4 read with Form 5A of Appendix 'D' of the Code of Civil Procedure and if the 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 f....
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....ue 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 had been a default in the payment which was a condition precedent for the accrual of a right to apply for final decree, vide rules 4 and 5 of Order 34 and paragraph 3 of Form No. 5-A, Appendix D to First Schedule of the Code." The Hon'ble Madras High Court took a view in paragraph 9, as quoted above, where it is held, "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 conce....
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....udge has rightly come to a conclusion that this principle cannot be applied with its full vigour in the present case though it may not be executed under the provisions of the Code of Civil Procedure but a preliminary mortgage decree if subsisting on the date of coming into force of Section 31A of the DRT Act would be covered under the definition of 'debt' under Section 2(g) and within the meaning of 'decree and order' under Section 31A of the DRT Act, 1993. To that extent we approve the view taken by the learned single judge. 35. We have come to the conclusion that the decree, as contained in Annexure-1 which was issued to the plaintiff Bank, was not in prescribed Form 5A as per the First Schedule of Appendix '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 thi....