M/s Iman Guest House vs H.P. Financial Corporation

Deepak Gupta, J.—The grievance of the petitioner is that no final decree has been passed, therefore, the order dated 4.3.2011 is not legal.

Order 34 Rule 5(3) of the CPC reads as follows:-

"Order 34 Rule 5 Final decree in suit for sale.-

(1) xxxxxxxxxxxx

(2) xxxxxxxxxxxx

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt within the manner provided in sub-rule(1) of rule 4.

This clearly envisages that in a suit for recovery an amount where a prayer is also made for sale of the mortgaged property, first the Court is required to pass a preliminary decree and in the present case the preliminary decree was passed on 10th August, 2009 in the following terms:

In view of my above said discussions and findings, the suit succeeds and decreed with costs. A preliminary decree for the recovery of Rs.8,48,459/- is passed in favour of the plaintiff corporation and against the defendants with interest @ 20% with six monthly rests w.e.f.1.10.2000 till realization of the whole decreetal amount directing the defendants to pay the decreetal amount within a period of 4 months failing which the plaintiff corporation would be at liberty to apply for the final decree. Decree sheet be prepared accordingly. The file, after needful, be consigned to records.

A bare perusal of the operative portion of the decree shows that the learned trial Court granted four months time to the petitioner to deposit the decreetal amount failing which the plaintiff Corporation could be at liberty to apply for final decree. This amount has admittedly not been deposited and therefore, an application was filed for passing of final decree. Reply to the application was filed and the learned trial Court treated the said reply as objections to the execution petition and dismissed the same on 19.11.2010, which order has not been challenged till date. Thereafter on 4.3.2011 the impugned order was passed directing that appropriate steps be taken to realize the amount.

The grievance of the petitioner is that since no final decree has been passed no order for sale could have been issued. The objection to say the least is highly technical. Be that as it may, since the property has still not been sold, the learned trial court is directed to pass a formal order in terms of Order 34 Rule 5(3) of CPC and thereafter order the sale of the property.

Keeping in view the fact the matter is old one, the learned trial Court is directed to dispose of the case latest by 31st December, 2011. The parties through their counsel are directed to appear before the learned trial Court on 1st December, 2011. No costs.