P. Ambrose v. Punjab National Bank, Thanjavur — 1997 DIGILAW 1201 (MAD)

Judgment : 1. The judgment-debtor, who suffered a decree in O.S. No. 182 of 1988 on the file of Sub-Court, Thanjavur, dated 8. 1989 has filed a petition in E.A. No. 59 of 1993 under Section 47 of the Act to dismiss the execution petition in E.P. No. 36 of 1990. The Lower Court in its order dated 29. 1993 dismissed the petition. Aggrieved against the same, the petitioner has filed the above revision. .2. The respondent filed O.S. No. 182 of 1988 on the file of Sub-Court, Thanjavur, for passing a decree on a mortgage. The petitioner/second defendant filed a written statement which was adopted by the first defendant. In the written statement, it is specifically alleged that the defendant should be allowed to pay the amount in instalments at the rate of Rs.5,000 per month. No oral evidence was adduced on both sides. On the basis of the materials available on record, the lower court in its judgment dated 8. 1989 decreed the suit with a direction that the defendant should pay the amount at the rate of Rs.7,500 per month. That judgment and decree has become final and admittedly the defendant did not challenge the same by filing an appeal. But when the respondent/decree holder filed E.P. No. 36 of 1990 to execute the decree in the said proceedings, the petitioner filed the present petition under Section 47 of C.P.C. The lower court after discussing the issue dismissed the petition. Aggrieved against the same, the first defendant has filed the above revision. 3. The learned counsel appearing for the petitioner has submitted that under Order 34, C.P.C., the lower court should have passed the preliminary decree and then the final decree and in this case, no preliminary decree was passed by the Trial Court and so the decree passed by the Trial Court cannot be executed. In support of his arguments, the learned counsel relied on the judgments reported in Bulkee v. Majee Muhammad Ummar Sahib , A.I.R. 1926 Mad. 415 and Gyarsi Bai v. Dhansukh Lal , A.I.R. 1965 SC 1055. .4. In support of his arguments, the learned counsel relied on the judgments reported in Bulkee v. Majee Muhammad Ummar Sahib , A.I.R. 1926 Mad. 415 and Gyarsi Bai v. Dhansukh Lal , A.I.R. 1965 SC 1055. .4. The learned counsel appearing for the respondent/decree holder has submitted that in view of the fact that the judgment-debtor admitted the liability to pay the suit amount in instalments, the question of passing preliminary decree and final decree separately does not arise and in view of the same, the Lower Court has passed a final decree itself, which is in accordance with law. The learned counsel has further submitted that the decree passed by the lower court in O.S. No. 182 of 1988 has become final as the petitioner has not challenged the same by filing an appeal. In view of the same, the petitioner cannot now raise a contention about the legality of the decree passed by the lower court. In support of his submission, the learned counsel relied on judgment reported in Nainar Mohamed Rowther and another v. Minor Vijayasankar and two others , 1988 T.L.N.J.195 and Epoor Ramasamy Reddy and others v. Kandadai Rangamannar Iyengar , A.I.R.1914 Mad. 365 and on the basis of the written statement filed by the defendant, the trial court decreed the suit, since the defendant has only prayed to pay the suit amount in instalments. The Trial Court granted permission to pay the decree amount in installments at the rate of Rs.7,500 per month. The judgment and decree have become final. 5. The learned counsel for the petitioner relied on the judgment reported in Bulkee Bee’s case, A.I.R. 1926 Mad. 415 and in Gyarsi Bai’s case, A.I.R. 1965 SC 1055 and has submitted that without passing the preliminary decree, the final decree cannot be passed under Order 34 of C.P.C. The said judgments cited by the learned counsel speak only about the usual procedure of Order 34 of C.P.C. In that case, the Court had to ascertain the amount due under the mortgage. Hence on the basis of the facts of that case in the said judgments, the Apex Court and this Court have come to the conclusion that the Lower court would have passed the preliminary decree first and thereafter the final decree. Hence the said judgment cannot be made applicable to the facts of the present case. .6. Hence on the basis of the facts of that case in the said judgments, the Apex Court and this Court have come to the conclusion that the Lower court would have passed the preliminary decree first and thereafter the final decree. Hence the said judgment cannot be made applicable to the facts of the present case. .6. In the present case, there is no dispute about the quantum and the defendant has prayed to pay the decree amount in instalments. In the above circumstances, the question is what is the procedure has to be followed Srinivasan, J. (as he then was) in the judgment reported in the case of Nainar Mohamed Rowther, 1988 T.L.N.J. 195, has held that, .“It is clear from a reading of Order 34, Rule 7 of the Code of Civil Procedure that a preliminary decree is to be passed for taking of account as to what was the amount due to the defendant at the date of the decree for principal and interest of the mortgage, costs of suit, if any, awarded to him and other costs, expenses properly incurred by him upto the date of decree in respect of the mortgage security together with interest thereon. In this case, the claim made by the defendants that they had made improvements and that they were entitled to be compensated there is no dispute with respect to the amount due under the mortgage. There is no impediment to pass a final decree straight away.” 7. In view of the above, the trial court is correct in law in passing the final decree straight away. .8. Admittedly, the defendants have not filed any appeal challenging the decree passed against them. As such the said judgment and decree have become final. In those circumstances, the decree holder is entitled to execute the decree and the decree operates as res judicata against the defendant and it is not open to the petitioner herein, to plead that the decree passed by the lower court is not valid in law. The judgment reported in Epoor Ramasamy Reddy’s case, AIR 1914 Mad. 365 while considering the scope of Section 11 of C.P.C. reads as follows: .“On the decree-holder’s application for the execution of the decree, notice was issued to the judgment-debtors (appellants) and an order was passed directing the sale of the property; no objection was taken to the sale on this ground. 365 while considering the scope of Section 11 of C.P.C. reads as follows: .“On the decree-holder’s application for the execution of the decree, notice was issued to the judgment-debtors (appellants) and an order was passed directing the sale of the property; no objection was taken to the sale on this ground. It has been repeatedly held that even though a relief may not have been granted by the decree, yet if in execution proceedings a court holds that a party is entitled to such relief under the decree, it is not open to the parties afterwards to contend that no such relief has been awarded and the matter is res Judicata.” 9. In view of the above, the Lower Court is correct in rejecting the petition filed by the petitioner and the Civil Revision Petition is dismissed with cost of Rs.500. Consequently C.M.P.Nos.18121 of 1993 and 674 of 1997 is also dismissed.