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1994 DIGILAW 49 (DEL)

PUNJAB AND SINDH BANK v. MANJIT SINGH

1994-01-24

SAT PAL

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Sat Pal, J. ( 1 ) THIS is anapplication filed on behalf of the plaintiff bank under Order XXXIV Rule 5 read with Section 151 of Civil Procedure Code (in short the code ) and in this application it has been prayed that a final decree of sale bepassed in favour of the plaintiff and against the defendant No. 1 and the immoveable property commonly known as M-47, Greater Kailash-l, New Delhi be directed to be sold and the sale proceeds be directed to be paid to the plaintiff for appropriation towards the decretal amount/satisfaction of the decree. Reply to this application has been filed on behalf of the defendant No. 1 and it has been stated therein that no final decree can be passed in favour of the plaintiff and against the defendant No. J with regard to property mentioned above and as such the question of selling the immovable property does not arise. It has further been stated in the reply that the present application is not maintainable as the defendants have taken steps to get the ex- parte decree set aside by way of proper application. It may, however, be pointed out here that the application filed on behalfofthe defendants for setting aside ex-parte decree (IA 3259/92) has already been dismissd by my order dated 12th November, 1993. ( 2 ) MR. Amar Gupta, learned counsel appearing on behalf of the plaintiff drew my attention to the preliminary decree passed under Order 34 Rule 4 of the Code by this Court on 7th August, 1990. The relevant portion from the judgement is reporduced here inbelow:- "i accordingly pass a decree for recovery of Rs. 27,64,405. 00 with interest at the rate of 20. 5% per annum from the date of institution of the suit till realisation ofthe said amount in favour ofthe plaintiff and against the defendants. The plaintiff will be entitled to costs as per rules. The defendants will be jointly and severally liable to pay the decretal amount. I also pass a preliminary decree under Order 34, rule 4, Civil Procedure Code in favour of the plaintiff and against defendant No. 1; and grant six months time to the said defendant to pay the decretal amount alongwith interest as stated above, and costs till the date of payment. I also pass a preliminary decree under Order 34, rule 4, Civil Procedure Code in favour of the plaintiff and against defendant No. 1; and grant six months time to the said defendant to pay the decretal amount alongwith interest as stated above, and costs till the date of payment. In default of the said defendant making the payment, the plaintiff shall he entitled to apply for a final decree for sale of the mortgaged property and other directions in order to satisfy the decree. " ( 3 ) LEARNED counsel submitted that since the defendant No. 1 has failed to pay the decretal amount alongwith interest, a final decree for the sale of mortgaged property be passed and further directions as prayed in the application he also issued. ( 4 ) MR. Kumar. learned counsel appearing on behalf of defendant No. 1 submitted that the defendant No. 1 was never informed by the plaintiff Bank about the preliminary decree having been passed against him nor any request was made to the defendant No. 1 to pay the decretal amount and as such no final decree can be passed against the defendant No. 1. He farther submitted that while passing the preliminary decree the learned Judge has relied on the evidence of the plaintiff bank recorded by the Court in the absence ofthe defendants prior to setting aside ofthe ex-parte order and as such the preliminary decree was void abinitio. He further submitted that since the preliminary decree itself was viod abinitio, no final decree can be passed against the defendant No. 1. In support of his contention, learned counsel placed reliance on a judgment rendered by the Full Bench of Andhra Pradesh High Court reported in the case of Aniz. Ahmed Khan VS. I. A. Patel, AIR 1974 Andhra Pradesh 1, ajudgement of Allahabad High Court reported in the case of Mst. Lakihmi Devi VS. Roongta and Co. , AIR 1962, Allahabad 381 and a Judgement of Calcutta High Court reported in the case of Phani Bhusan Mukherjee Vs. Phani Bhusan Mukherjee, AIR 1957 Calcutta 170. The learned counsel also drew my attention to Ex. PW-1/7 and submitted that the present suit itself was not maintainable under Order 34 of the Code. He submitted that the property was kept as security and was not mortgaged. Phani Bhusan Mukherjee, AIR 1957 Calcutta 170. The learned counsel also drew my attention to Ex. PW-1/7 and submitted that the present suit itself was not maintainable under Order 34 of the Code. He submitted that the property was kept as security and was not mortgaged. The learned counsel also submitted that the interest charged by the plaintiff bank and included in the decretal amount was not in accordance with law. In this connection he referred to a Full Bench judgement of Bombay High Court in the case of Union Bank of India Vs. Dalpat Gaurishankar Upadhyay, AIR 1992 Bombay,482 and a judgement of Panjab and Haryana High Court in the case of Devinder Kumar Vs. Syndicate Bank, 1994 ISJ (Banking) 1. He, therefore, contended that the application is without any merit and be dismissed. ( 5 ) MR. Amar Gupta, in his rejoinder arguments. submitted that at the time of passing of the final decree the Court cannot go beyond the preliminary decree in which the right and liabilities of the parties had been determined. In support of his submission, he placed reliance on a Division Bench Judgement of Allahabad High Court reported in the case of Kalloo Vs. Niadar Singh, AIR 1929 All 252 and a Full Bench Judgement of the same High Court reported in the case of Ram Ugrah Ojha Vs. Ganesh Singh, AIR 1940 Allahabad 99. Learned counsel further submitted that even otherwise there is nothing in Section 33 of the Evidence Act which requires re-recording of the evidence when the defendant refuses to avail the opportunity to cross examine and remain absent. In support of his contention, learned counsel placed reliance on a Full Bench Judgement of Gujrat High Court reported in the case of Shah Bharatkumar Premchand VS. M/s. Motilal and Bharulal, AIR 1980 Gujrat 51. He further submitted that the Full Bench, of Gujrat High Court has taken notice of the judgement rendered by Full Bench of Andhra High Court in the case of Aziz Ahmed Khan (supra) and the judgement of Allahabad High Court in the case of Lakshmi Devi (supra ). ( 6 ) I "have given my thoughtful consideration to the submissions made by the learned counsel for the parties. ( 6 ) I "have given my thoughtful consideration to the submissions made by the learned counsel for the parties. As held by the Allahabad High Court in the case of Kalloo (supra) and Ram Ugrah (supra), the court at the time of passing the final decree has no power to go behind the preliminary decree in which the rights and liabilities of the parties had been determined, and while taking action under Order 34 Rule, the Court is not empowered to reopen the question which has already been determined by the Court at the time of preliminary decree. In view of this well settled law, I am not inclined to go behind the preliminary decree passed by this Court on 7th August, 1990. ( 7 ) EVEN otherwise, I do not find any merit in the contention urged on behalf of the defendant that the preliminary decree is void on the ground that learned Judge while passing the preliminary decree has relied on the evidence of the plaintiff recorded by the Court in the absence of defendant prior to setting aside of the ex-parte order. In this connection reference may be made to the order passed by this Court on 6. 7. 90 in IA 4876/ 90. By this order, a learned single Judge of this Court allowed the application filed on behalf of the plaintiff Bank. In this order, it is clearly stated that after the order proceeding ex-parte against the defendant was set aside, they were allowed to join the proceedings but now again the defendants have defaulted and they have been proceeded ex-parte. In these circumstances, it was held that it is not necessary to plaintiff to lead evidence as plaintiff has already led evidence. I am fully in agreement with the observation of the full Bench of the Gujrat High Court in the case of Shah Bharat kumar Premchand (supra) that there is no good reason to opt for a view which would oblige a Court to waste public time by re-recording the evidence without any point or purpose In the present case, as stated hereinabove, the defendants were proceeded against ex-parte and after the order proceeding exparte was set-aside, they again defaulted and had to be proceeded against ex-parte. In view of these facts, the defendants cannot be allowed to agitate this point that the evidence recorded by the Court in absence of defendant prior to the setting aside of the ex-parte order is not legal evidence. ( 8 ) AS regards the contention of the learned counsel for the defendant No. 1 that the said defendant had not created any mortgage by deposit of title deed, I do not find any substance in this contention. It has already been held in the judgement dated 7th August, 1990 that issue No. 11 was framed on this aspect of the matter and the onus of this issue was on the defendant who failed to lead any evidence in support of this issue. As regards the rate of interest, again it has been held in the aforesaid judgement dated 7th August, 1990 that the rate of interest charged by the plaintiff is in accordance with the agreement between the parties and as per the directions of the Reserve Bank of India issued from time to time in this behalf. In veiw of this I do not find any merit in this contention of the learned counsel for the defendant No. 1. As regards the contention of the learned counsel for the defendant No. 1 that no request was made to the said defendant to pay the decretal amount, I do not find any substance even in this contention as defendant No. 1 in his reply to this application has not made any offer to pay the decretal amount. ( 9 ) IN view of the above discussion and since the defendant No. 1 has failed to pay the decretal amount alongwith interest within six months time, I pass the final decree in favour of the plaintiff and against the defendant No. I under Order XXXIV Rule 5 with regard to immovable property known as M-47, Greater Kailash-l, New Delhi and I direct that the said property be sold and the sale proceeds be paid to the plaintiff for appropriation towards the decretal amount/satisfaction of the decree. The plaintiff shall take necessary steps for the sale of the said property in accordance with law. With this order, the application stands disposed of. The parties are, however, left to bear their own costs.