Md. Jahangir v. Rambriksha Pal & Ors.

father of the defendant-petitioner is a sale-deed and that the plaintiff has acquired right, title and interest over the suit property after the expiry of the date stipulated in the deed. The mortgage suit was filed by the plaintiff against the petitioner and his family who are opposite parties herein. A preliminary decree was passed in the suit on 15.5.1996 holding the plaintiff entitled to get the mortgaged amount of Rs.5,000/- from the defendant together with interest at the rate of 12% per annum to be calculated from 16.6.1981 which is the date of execution of the deed until the date of judgment and decree and which was required to be paid by the defendants within sixty days from the date of the judgment failing which they were held debarred from redemption of the property and the plaintiff would become entitled for a final decree of foreclosure. Being aggrieved with the preliminary decree passed in the suit, the defendant-petitioner preferred an appeal giving rise to M.T.A. No.15 of 1996. The plaintiff was arrayed as respondent 1st set and the other defendants were arrayed as respondent 2nd set. Neither any prayer for stay was made by the appellant in the appeal nor any prayer for extension of time for payment of the mortgaged money was made. While the appeal Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 3 against the preliminary decree was pending, the final decree was passed in the suit on 16.11.1998 and since the defendants had not discharged the obligation created under the preliminary decree dated 15.5.1996 hence they were debarred from redemption of the mortgaged property. The appeal preferred by the defendant-petitioner in M.T.A. No.15 of 1996 was partly allowed under a judgment and decree dated 17.6.2003 modifying the preliminary decree to the extent that the direction to pay interest at the rate of 12% per annum on the principal mortgaged amount was set aside. In view of the appellate decree passed, modifying the preliminary decree, the defendant-petitioner filed an execution case bearing Execution Case No.7 of 2003 for requiring the plaintiff to accept the mortgaged amount of Rs.5,000/- in the light of the appellate decree, to return the original mortgage-deed and to hand over the possession of the mortgaged land. The defendant- petitioner also deposited the mortgaged amount through Challan on 10.2.2004 in full satisfaction of the mortgage deed, for payment to the mortgagee-plaintiff. An objection was filed by the plaintiff in the execution case on 3.7.2004 under the provisions of section 47 of the Code of Civil Procedure (hereinafter referred to as „the Code‟) questioning maintainability of the execution case on grounds of the Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 4 defendants failing to ensure the compliance of the preliminary decree and in view of the final decree passed on 16.11.1998 debarring the defendants including the petitioner redeeming the mortgage. It was the case of the plaintiff that as no step had been taken by the defendants for modification of the final decree and in consequence whereof the plaintiff had acquired title over the suit land, the execution case was not maintainable. It was also the case of the plaintiff that the executing court could not go behind the final decree which since directs foreclosure from redemption of the mortgaged property. The objection was dismissed by the executing court vide order passed on 2.4.2005 and which was questioned in C.R. No.875 of 2005 before this Court by the plaintiff. The civil revision was also dismissed vide order passed on 24.1.2008. The plaintiff thereafter again filed an application under section 151 of the Code questioning the maintainability of the execution proceedings and this time the executing court by the order impugned dated 21.7.2008 dismissed the execution case holding the same not maintainable and hence the present application. Mr. Abdul Manan Khan, learned counsel has appeared for the defendant-petitioner. He has submitted that Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 5 the executing court in dismissing the execution case has committed a serious illegality in holding that since the defendant-petitioner did not take steps for modification of the final decree in terms of the appellate decree hence as per the provisions of Order 34 rule 3(1) of the Code, the period granted to the defendants under the preliminary decree to deposit the mortgaged amount within sixty days of the decree could not be extended and as a consequence thereof, the right of the defendants stood extinguished under the final decree debarring them from redemption of the mortgaged property. Mr. Khan, learned counsel relying upon a judgment of the Supreme Court reported in AIR 1967 SC 1236 (Sital Parshad vs. Kishori Lal) submits that where the preliminary decree itself stood modified under the appellate decree, the final decree has to fall since the defendant-petitioner cannot be held to be a defaulter of the preliminary decree in view of its modification and since the final decree in the suit is only a consequence of the non- compliance of the preliminary decree, hence when the basis itself stood removed, the final decree has to fall and would stand modified by the appellate decree. He submits that in such circumstance there would be no necessity to apply for a final decree. It was contended that immediately upon passing of the final decree, the defendant-petitioner deposited the mortgaged Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 6 amount in the court, upon refusal of the plaintiff to accept the same and thus he is entitled to the prayer made in the execution proceedings. The arguments of Mr. Khan have been contested by Mr. Dwivedi, learned senior counsel appearing for the opposite party no.1. With reference to the preliminary decree passed in the suit, it was stated that the defendants were granted sixty days time to deposit the mortgaged amount failing which the defendants were held debarred from seeking any redemption. He has submitted that since the preliminary decree was never complied within the period stipulated thereunder, the final decree was passed debarring the defendants from seeking redemption of the property. Mr. Dwivedi, learned senior counsel has referred to the provisions of Order 34, rules 1 to 4 of the Code to submit with reference to rule 3(1) (a) that where before a final decree debarring the defendant from his right to redeem the property has been passed, the defendant makes payment of all amounts due from him in the court, the court concerned shall on an application made by such defendant pass a final decree requiring the plaintiff to deliver the document referred to in the preliminary decree. It is stated that admittedly the defendant failed to make payment of the mortgaged amount to the plaintiff before the final decree was passed and thus the Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 7 defendant-petitioner cannot rely upon an appellate decree for undoing the inevitable. It is submitted that following the appellate decree no attempt was also made by the defendant- petitioner for modification of the final decree. It is the contention of Mr. Dwivedi that until such time the final decree is modified, the defendant-petitioner could not have instituted the execution case for transfer of the paper of the property. With reference to paragraphs 7 to 9 of the Supreme Court judgment reported in (2007)2 SCC 355 (Hasham Abbas Sayyad vs. Usman Abbas Sayyad) it was submitted that it is only the final decree which can be executed and not the preliminary decree unless the final decree is part of the preliminary decree. It is stated that that since the defendants had at no stage questioned the mortgaged amount and thus there was no reason for non-deposit of the mortgaged amount before passing of the final decree. It was contended that the appeal was only restricted to the interest amount and since no interim order was passed staying the preliminary decree or the deposit of the principal amount nor the appellate decree seeks to modify the principal mortgaged amount hence there could be no justification for non-deposit thereof by the defendants. It is stated that no application for extension of time was made by the defendant-petitioner under section 148 of the Code. Mr. Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 8 Dwivedi has also relied upon the judgment of the Supreme Court rendered in the case of Sital Parshad (supra) more particularly to paragraphs 6, 7, 8, 15 and 17 to submit that since the mortgaged amount together with interest was to be deposited within a period of sixty days of the decree and neither any application for extension of the period was made by the defendants nor the period was enlarged under the appellate decree and further since the defendants did not question the principal mortgaged amount nor chose to deposit the same in obedience of the preliminary decree, the defendants have incurred disqualification and in absence of any order permitting them to do so or modification of the final decree, they are precluded to either deposit the same or to seek return of the mortgaged documents or the property. It is submitted that the preliminary decree was not set aside rather it was merely modified and which would have no effect on the final decree passed in the suit. It was thus submitted that the order passed by the executing court is based on sound principles of law, is supported statutory provisions judicial pronouncements and thus does not suffer from either jurisdictional error or legal infirmity requiring any interference. I have heard learned counsel for the parties and have perused the materials on record. On the basis of the arguments Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 9 advanced on behalf of the contesting parties and the pleadings available on records of the proceedings this Court finds that the following issues fall for consideration, namely: (a) Whether the failure of the petitioner to ensure compliance of the preliminary decree before passing of the final decree, would debar him from redemption of the mortgaged property under Order 34 rule 3(1) and (2) of the Code; (b) whether as a consequence of the modification of the preliminary decree by the appellate court, the final decree fell flat and became inoperative and/or it stood modified accordingly; (c) whether the modification of the preliminary decree by deletion of interest would extend the period of deposit of the mortgaged amount even in absence of any such stipulation in the appellate decree; (d) whether the deposit made by the defendant- petitioner of the mortgaged amount in terms of the appellate decree would entitle him to maintain the execution proceedings; and (e) whether the order dated 2.4.2005 of the trial court as contained in Annexure-2 rejecting the earlier objection filed on behalf of the plaintiff under Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 10 section 47 of the Code placed at Annexure-1 which was confirmed by this Court vide order dated

24.1.2008 passed in Civil Revision No.875 of 2005 (Annexure-3) would operate as a bar to the maintainability of the second objection filed on behalf of the plaintiff under section 151, read with section 47 of the Code placed at Annexure-4. The records of the proceedings manifest that the issues placed at item nos. (a) to (d) have been raised by the plaintiff thrice earlier and rejected. The order impugned in fact was the 4th attempt of the plaintiff to obstruct the relief granted to the defendant-petitioner under the appellate decree. I find that these very issues were raised by the plaintiff initially before the appellate court in M.T.A. No.15 of 1996 as is apparent from the findings recorded at paragraphs 6 and 7 of the appellate court judgment. Even before the appellate court the plaintiff as a respondent questioned the maintainability of the appeal on grounds of final decree having been passed by the trial court on

16.11.1998 thus debarring the defendant from redemption of the property and no appeal being preferred against the final decree. It was also argued that the principal amount had not yet been deposited by the defendant even in terms of the preliminary decree and hence by passing of the final decree, the appeal had Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 11 become infructuous. The contentions were rejected by the appellate court in the light of the judgment of the Supreme Court rendered in the case of Sital Parshad (Supra). The appellate decree modifying the preliminary decree passed by the learned trial court has since attained finality as no appeal was preferred by the plaintiff questioning the appellate decree. Following the appellate decree modifying the preliminary decree and since according to the defendant-petitioner, the plaintiff was not ready to accept the mortgaged amount, he levied the execution case in question giving rise to Execution Case No.7 of 2003. The appellate judgment and decree having been passed on 17.6.2003, there is absolutely no delay by the defendant in levying the execution case. The second attempt was made by the plaintiff before the executing court when identical objection as raised before the appellate court was again raised by filing an application under section 47 of the Code and a copy whereof is placed at Annexure-1. By a reasoned order dated 2.4.2005 the executing court dismissed the objection filed by the plaintiff under section 47 of the Code and which order is present at Annexure-2. The third attempt was made by the plaintiff when he questioned the order passed by the executing court dated

2.4.2005 before this Court in Civil Revision No.875 of 2005 Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 12 and this Court taking into consideration the entire background of the case dismissed the civil revision application, thus affirming the order of the executing court dated 2.4.2005. This Court while dismissing the civil revision application has given a categorical finding that the preliminary decree passed by the trial court stood modified by the lower appellate court and which judgment and decree of the appellate court has not been challenged by the plaintiff, hence the preliminary decree stood merged in the appellate decree and which would be deemed to be a decree drawn under the provisions of Order 34 rule 2(1) of the Code and on that basis necessary orders have to be passed by the executing court in accordance with the relevant provisions of law. The order passed by this Court in the civil revision application puts to an end all speculations as being canvassed on behalf of the plaintiff. Again the order of this Court in the civil revision application filed on behalf of the plaintiff was never questioned before any superior court and has attained finality. Even while this Court had clarified the legal position requiring the executing court to proceed in accordance with law, a second objection was filed by the plaintiff, this time under section 151 of the Code, read with section 47 thereof and the executing court upon a complete misappreciation of law, the Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 13 judicial pronouncement in the case of Sital Parshad (supra) and turning a blind eye not only to the earlier rejection of a similar objection vide order passed on 2.4.2005 but also the finding of the appellate court on the issue and the order of this court in C.R. No.875 of 2005, all of which had attained finality, has passed the order impugned. The executing court has acted most illegally and with utmost material irregularity inasmuch as the issues raised by the plaintiff stood concluded by the earlier order(s) passed on similar objection. Even on merits, the plaintiff has no case in view of the conclusion drawn by the Supreme Court at paragraph 16 of the judgment rendered in the case of Sital Parshad (supra) which runs as follows: “16. We are further of opinion that even where there has been a variation in the decree, the final decree if passed in the meantime, requires no formal amendment in view of the form in which a final decree for sale is prepared. All that happens is that where the preliminary decree is varied one way or the other the final decree which is entirely depending on the preliminary decree stands varied by its own terms in accordance with the terms of the preliminary decree passed in appeal. It is the duty of the executing Court when it is executing the final decree passed in the meantime to see that the execution is in accordance with the preliminary decree passed in appeal which is the support of the final decree. Of course, if the appellate Court when deciding the appeal gives any particular direction with respect to the preparation of a fresh preliminary decree that direction has to be carried out. Ramnath’s case. ILR (1947) All 40: (AIR 1947 All 83), was of this latter kind. There the appellate Court directed the preparation of fresh preliminary decree in accordance with its judgment. In such a case it may be said that as there had to be a new preliminary decree in accordance with the direction of the appellate Court a new final decree in accordance with the new preliminary decree might have to be prepared. But where there are no specific directions of Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 14 is merely a variation the appellate Court with respect to the preparation of a new preliminary decree, and all that the appellate Court orders the amount for redemption - be it more or less than that provided in the preliminary decree - it is in our opinion the duty of the executing Court to see when it is asked to execute a final decree prepared in the meantime that the modifications made by the appellate Court in the appeal from the preliminary decree are given effect to during the execution proceedings. As we have said already, the language of the final decree in Form 6 is such that it requires no modification even though there might be modifications in the preliminary decree by the appellate Court, and all that is required is that the executing Court should in executing the final decree prepared in the meantime give effect to the decree in appeal from the preliminary decree, if it is a case of variation one way or the other. The only exception to this principle is a case where the appellate Court gives specific direction for the preparation of a fresh preliminary decree or gives further time after the decree in appeal from the preliminary decree. In such a case a fresh preliminary decree may have to be drawn up to be followed by a fresh final decree. The present, however, is not a case of this kind as already indicated, and in the circumstances it was the duty of the executing Court, when variations made by the appellate Court in appeal from the preliminary decree were brought to its notice, to take them into account in executing the final decree, which had been prepared in the meantime. The final decree in terms required no change in view of Form 6 already referred to and all that the executing Court had to do was to take note of the fact that the supporting preliminary decree had been varied and to execute the final decree in accordance therewith. In this view of the matter we are of opinion that the view taken in Periakaruppan Chettiar's case, ILR (1947) Mad 132: (AIR l946 Mad 383), is correct subject to what we have said with respect to the case where there are specific directions by the appellate Court in an appeal from the preliminary decree for preparation of a fresh preliminary decree or for fixing a fresh time for payment.” The principles laid down in the judgment of the Supreme Court in the case of Sital Parshad (supra) would apply with full force to the case in question. Thus since the final decree passed in the suit was only a consequence of the non- Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 15 compliance of the preliminary decree, the moment preliminary decree stood modified by the appellate decree, the final decree would stand modified accordingly and since there is no direction of the appellate court requiring the trial court to pass a fresh preliminary decree hence neither there was a requirement for the trial court to pass a fresh preliminary decree nor was the defendant-petitioner required to approach the trial court for passing a final decree in terms of the appellate decree rather the defendant very correctly approached the executing court in the light of the supreme court judgment for executing the decree which stood modified under the appellate decree. These very issues having been raised and rejected by the executing court in its order dated 2.4.2005 and which order stood affirmed by the High Court, the executing court while passing the order impugned and rejecting the execution case on grounds of maintainability has clearly exceeded its jurisdiction. In so far as the plea of non-deposit of the mortgaged amount by the defendant, within the period stipulated in the preliminary decree, is concerned, the period for deposit of the mortgaged amount would stand modified under the appellate decree and since the execution case was filed consequent upon the passing of the appellate decree, without any delay, the claim of the defendant also could not have been rejected on this ground. Patna High Court C.R. No.1831 of 2008 (20) dt. 13-05-2013 16 In view of my findings recorded hereinabove, the issue present at item no.(e) stands answered accordingly. For the reasons aforesaid the order dated 21.7.2008 passed in T.M. Execution Case No.7 of 2003 by the learned Munsif 1st, Munger is set aside and the execution case is restored to its original position. As the parties are in attendance, the learned executing court shall proceed to dispose of the execution case in accordance with law expeditiously and preferably within six months receipt/production of a copy of this order. This civil revision application is allowed and although this Court considering the harassment to which the defendant has been subjected to, was more than tempted to impose costs against the plaintiff but has refrained to do so with much restraint. SKPathak/- (Jyoti Saran, J.)