Nathu Ram vs State Bank of India and Others

Swatanter Kumar, J.—Relying upon the judgment in the case of Ram Nath v. Deokinandan Krishna and Ors. AIR 1947 All 83 learned counsel for the petitioner contended that the learned executing Court has erred in dismissing the application preferred by him praying for the dismissal of the execution petition. It is argued that the basic decree passed by the learned trial Court dated 11.9.1995 was only a preliminary decree and not a final decree which could be executed in accordance with the provisions of the Code of Civil Procedure.

In order to appreciate this contention reference to basic facts would be inevitable. State Bank of India, a body corporate, filed a suit for recovery of Rs. 6,39,483.00 against M/s Jai Shakti Enterprises and its partners. The prayer in the plaint was for decreeing the above amount with interest and for its realisation by sale of the mortgaged property. The learned trial Court vide its judgment and decree dated 11.9.1995 passed the decree and granted the following relief to the Bank:-

"Accordingly a preliminary decree is passed for the recovery of Rs. 6,39,483.00 with costs of the suit, the plaintiff Bank is also entitled to interest at the agreed rate from the date of filing of the suit till the date of decree and future interest at the agreed rate from the date of decree till realisation of the decretal amount. The defendant will pay the decretal amount within 6 months from the date of decree failing which the plaintiffs will be entitled to realise the decretal amount through court by way of sale of the mortgaged property of the defendant and hypothecated goods. Decree sheet be prepared."

The said decree has neither been appealed against nor its execution stayed by the Court of competent jurisdiction. The petitioner herein failed to satisfy the decree in terms thereof resulting in filing of execution application by the Bank. The Bank filed an application for passing a final decree and putting the house to auction. Notice of the said execution application was sent to the judgment-debtors. Vide order dated 15.2.1997 the learned trial Court came to the conclusion that the decree was already passed on 11.5.1995 and called upon the judgment-debtor/petitioner herein to satisfy the decree failing which warrant of sale was ordered to be issued on the dates fixed. Thereafter the judgment-debtor appeared in the execution proceedings and filed objections on 2.4.1998. Another objection earlier filed by the petitioner were also dismissed by the trial Court vide its order dated 3.12.1998. Even that order passed by the learned executing Court was not assailed in any proceedings by the judgment-debtor.

The objections were primarily based on the contention afore noted, these objections were found without any merit by the learned executing Court. The Court expressed the view that the last paragraph amounted to a final decree and as such dismissed the objections vide impugned order dated 16.4.1999 giving rise to this revision.

It is a settled canon of law that where a preliminary decree is passed, the Court has to pass a final decree, which can be executed in accordance with law. The distinction between a preliminary and a final decree is that some acts or calculations remained to be calculated which should be done upon passing the preliminary decree. After such acts or commissions are done that the Court passes a final decree. For example in a suit for partition, shares of the parties to the suit may be defined along with the properties to be partitioned by a preliminary decree. However, a final decree would be passed only when a commissioner appointed by the Court or by any special mode partition by metes and bonds actually and physically based upon preliminary decree is finalised by the Court and a final decree in terms thereof could be passed. On the other hand; there could be cases which may not require determination by the Court at two different stages and a composite decree could be drawn on the basis of the judgment" passed by the Court and would help in doing expeditious disposal of the proceedings, between the parties without under-mining or injuring the ends of justice or interests of justice. The contempt of composite decree is no way innovative or unknown to law.

The provisions of Order 34 of the Code require the court to pass a preliminary decree and a final decree. Under Rule 4 of Order 34 of the Code, preliminary decree would be passed in relation to suit for sale and which would thereafter be converted into a final decree. Thereafter the Court would pronounce decree in terms of Order 34 Rule 5 of the Code.

The purpose of Rule 5 is to provide an opportunity to the judgment-debtor to pay in Court the amounts due to the plaintiff by the defendant. If such a payment is made within the period stipulated, the final decree itself is not executable there-upon. The intent and purpose of the legislation is to finally determine the amount payable, opportunity to be provided to the judgment debtor for payment of the amount so finally determined and in default thereto direct sale of the property which is mortgaged.

The provisions of Order 20 Rule 6-A of the Code further indicate that the last paragraph of the judgment was stayed in precise terms the relief which has been granted by such judgment. In terms of the judgment the decree shall be drawn. The relief has to be stated clearly and in definite terms. The learned counsel for the petitioner has not been able to demonstrate as to what were the steps required to be taken by the Court after passing the decree dated 11.9.1995.

Another factor is that the learned counsel for the petitioner has also not been able to show as to what prejudice the judgment-debtors have suffered as a result of passing of the above composite decree which they have not even assailed. The provisions of the CPC are intended only to be observed for doing substantial justice between the parties and ensure that ends of justice are not defeated and neither of the parties to the proceedings suffer any prejudice.

The relief granted by the trial Court is entirely in consonance with the provisions of law and unambiguously the relief which the plaintiff is entitled to and which calls for no further steps for any computation or calculations. In the present case no further steps were required to be taken in law in the interregnums period falling between the passing of the so called preliminary decree and the final decree being passed by the Court. The decree clearly provided the liability of the judgment-debtor, its obligation to pay the payment within stipulated period and in default thereto the sale of the mortgaged or hypothecated goods. The principle of codified law cannot be applied in a mechanical manner. Their adherence and compliance has to be seen keeping in view the facts and circumstances of each case. There are cases where without passing a final decree in accordance with laws, would prove fatal to the case of the plaintiff while in other cases a composite decree passed by the Court of competent jurisdiction may not invite such consequences.

The case relied upon by the learned counsel for the petitioner has no application to the facts and circumstances of the present case. The judgment does not intend to lay down an absolute principle of law. In that case the appellant Court had already set aside the preliminary decree and directed preliminary decree to be drawn up again in terms of the judgment of the appellate Court, which certainly is not the case herein.

For the reasons afore-stated. I do not see any error of jurisdiction in the order of the learned executing Court in dismissing the objections of the judgment debtor, which in any case were frivolous. Consequently, the revision petition is dismissed with no orders as to costs.