Kommuru Bhaskararao and Another vs Aremanda Sivanagendramma

D.H. Nasir, J.—This revision is directed against the order of the learned Subordinate Judge, Tenali, passed in IA.No.303 of 1992 in O.S.No. 176 of 1989 on 11-8-93.

The plaintiff-respondent made an application under Order 34 Rules 4 and 5 of C.P.C. to pass a final decree for sale of the schedule mortgaged property in terms of the preliminary decree passed in the suit on 30-9-91 in his favour and against the defendant No. 1 for a sum of Rs. 87,923-50 ps. with interest on the principal sum of Rs. 40,000/- as stipulated in the preliminary decree. The Court granted six months time for redemption, but according to the plaintiff no amount was paid, and therefore, it became necessary for him to make the aforesaid application.

The respondent Nos. 4 and 5 petitioners herein filed separate counters and contested the petition for final decree. Respondent No. 4 claimed that he had succeeded to the schedule property which belonged to the joint family of himself and his father, and alleged that respondent No. 1 colluded with the plaintiff to defeat his rights in the property, and therefore, the preliminary decree was null and void. He filed OS.No. 515 of 1992 on the file of the Principal Munsif,Tenali,againstrespondentNo.1, the petitioner/plaintiff and others for partition of the joint family property along with the schedule property and the said suit was pending, and therefore, according to him, the preliminary decree was not binding on him and was liable to be dismissed. The respondent No. 5 also advanced the same claim.

The learned trial Judge in his impugned order observed that while considering the passing of final decree he had to adhere to the preliminary decree. It was also necessary to examine whether any other circumstances existed which could be treated as sufficient to prevent the passing of final decree on the basis of the preliminary decree. The learned Judge also observed that there was no stay on the final decree proceedings. However, he took note of the fact that respondent No. 4 had filed a suit against respondent No. 1 for partition and separate possession of the joint family properties, including the suit schedule property, which was pending in the Court of the Principal District Munsif, Tenali. He also took note of the fact that it was not disputed that no amount was paid by respondent No. 1 or any other respondent on his behalf under the preliminary decree, and therefore, the learned trial Judge observed that there was no impediment against the passing of final decree, and accordingly passed the final decree as prayed for.

The learned counsel for the original plaintiff-respondent challenged the maintainability of the revision petition on the ground that what was sought to be challenged by the petitioners was a final decree, and therefore, anyone feeling aggrieved by it had to file an appeal against the same, and not the revision, and in support of his contention he placed reliance on the decision of this High Court in the case of Md. Abdul Basith v. Razia Begum, in which it was held that no revision lies against the impugned order which is an appealable order because the order rejecting a plaint is a decree within the meaning of Section 2(2) of the Code of Civil Procedure, which is an appealable order.

He further submitted that the present petitioners prayed for grant of stay of all further proceedings in E.P.No.98 of 1993 in O.S.No.176 of 1989 on the file of the learned Subordinate Judge, Tenali, pending disposal of the revision petition, and that such stay was sought under the provisions of Section 47 CPC. By interim order, the sale as scheduled was directed to be proceeded with, but confirmation of sale was stayed, and in that view of the matter also, there could be no denial to the proposition that the revision petition was not maintainable I and that only an appeal would lie against the order of the lower Court.

The learned counsel for the petitioners submitted that the impugned order was passed on an application made for obtaining a final decree, and therefore, it could not be said that what was challenged in the present proceeding was the final decree. He emphatically submitted that the revision petition was directed only against the order made on an application for final decree, and therefore, the revision petition was the only remedy for the aggrieved party, and in support of his submission, he relied upon the decision of the Madras High Court in the case of Kamarsu Ramachendrarao Vs. Simhadri Rattayya and Others, in which it is held that an appeal arose out of an application for the passing of a final decree in a mortgage suit under Rule 5, Order 24 (sic.34) CPC. The lower Court allowed the application and passed a final decree. The order stood in the place of the judgment and the decree drawn up in pursuance of it was the final decree as contemplated in the aforesaid rule, and that being so, the appeal was deemed to be one against the final decree so passed. In such an appeal, the High Court held that, it was open to the appellant to raise the contention that the final decree should not have been passed. However, the learned counsel argued that he was entitled to file an appeal against an order directing the drawing up of a final decree as if such an order had been passed in that case. The High Court further observed that even so he must be able to show that such an order was appealable. The High Court further observed that this was not an order against which an appeal was provided by Order 43 CPC. Nor did such an order amount to a decree within the meaning of the definition given in the Code; and that it would be anomalous to treat such an order as a decree, in which case two regular appeals would arise out of the application under Order 34 Rule 5, one against the order allowing the petition and the other against the final decree passed on that application itself. It was further observed that the decision of Curgenven, J., in Ranga Raju and Another Vs. Ethirajammal, had been relied on. However, the High Court found that the question whether that order was a decree and if not, under what provision of law appeal would lie against such an order was not discussed in that judgment. Even if that decision impliedly decided that such an order was appealable though not as a final decree, they had to respectfully differ from that view, and in that view of the matter, the Madras High Court held that the Civil Miscellaneous appeal was not maintainable. The High Court, however, allowed the appellant to convert the same into a regular appeal against the final decree on payment of requisite Court fee.

The present petitioners in para 3 of their affidavit contended that the preliminary decree obtained against their father was not binding on them, and that the decree-holder was not entitled to obtain a final decree for sale of the mortgaged property and in para 6 of the affidavit, it is stated that the respondent filed EP. No. 98/93 for sale of the mortgaged property and prayed for granting of stay of all further proceedings in the EP, on the file of the Additional Subordinate Judge, Tenali, pending disposal of the revision petition. The revision petitioners, therefore, cannot now come up with a contention that the revision petition was maintainable on account of the fact that it was directed only against the order passed on the application for final decree.

Having regard to the fact that in pursuance to the order passed on the application in question final decree has already been passed and execution proceedings have already been initiated, what was open to the petitioners was to contend that the order in question should not have been made in an appeal against the decree as envisaged by Order 43 Rule 1A(i).

Indeed, in the case before us, the decree has already been passed in pursuance to the said order, but no judgment has been formally pronounced mainly on account of the fact that the judgment part of the proceedings had already been pronounced at the time when the preliminary decree was passed, and the circumstances did not. warrant any further judgment to be pronounced while allowing the application for passing the final decree.

In the facts and circumstances of the case, therefore, I have no hesitation in coming to a conclusion that the revision petition is not maintainable, and the same deserves to be dismissed. The CRP is hereby accordingly dismissed. No costs.