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2016 DIGILAW 1471 (MAD)

Valliammal v. Sheik Peer Mohammed

2016-04-05

V.M.VELUMANI

body2016
ORDER : V.M. Velumani, J. The Civil Revision Petition is filed to call for the records in E.P.No.11 of 2013 in O.S.No.24 of 2008 on the file of the learned Subordinate Judge, Ambasamudram and struck of the same. 2. The revision petitioner is the defendant. The respondent is the plaintiff. The petitioner filed present Civil Revision Petition under Article 227 of Constitution of India to strike off Execution Petition filed by the respondent. 3. The respondent/plaintiff filed a suit in O.S.No.24 of 2008, based on the equitable mortgage created by petitioner for a decree and directing the petitioner to pay the amounts due under mortgage, within the time limit fixed by the Court, failing which prayed for sale of mortgaged property and if sale proceeds are not sufficient to satisfy the entire amount due under mortgage, prayed for preliminary decree. A preliminary decree was passed on 14.12.2009. The respondent filed I.A.No.194 of 2010 in O.S.No.24 of 2008 for passing a final decree. The petitioner filed A.S.No.31 of 2010, against the preliminary decree dated 14.12.2009 and the said first appeal was dismissed on 08.02.2011. Against that order of dismissal, the petitioner filed second appeal in S.A.No.345 of 2004 and the same is pending. The Final Decree was passed on 01.06.2011. The respondent filed E.P.No.11 of 2013 for sale of mortgaged property as per Final Decree. The petitioner filed present Civil Revision Petition to strike off the Execution Petition, on the ground that the respondent ought to have filed suit for sale of the property, as per Order 34, Rule 14 of CPC. The Execution Petition filed under Order 34, Rule 15 (2) is not maintainable. 4. The learned counsel for the petitioner contended that Order 34, Rule 15 (2) of CPC is applicable only to charge decree not for a mortgaged decree. The application for final decree was filed pending appeal and therefore, it is pre-matured. The final decree passed on pre-matured application is void. Therefore, prayed for strike off Execution Petition. In support of his contention the learned counsel for the petitioner relied on the Judgment reported in 2008 (5) SCC 124 (M.R. Satwaji Rao (dead) by LRs v. B. Shama Rao (dead) by LRS and others). 5. I have heard the learned counsel appearing for the petitioner and perused the materials available on record. 6. The contention of learned counsel for petitioner is untenable. 5. I have heard the learned counsel appearing for the petitioner and perused the materials available on record. 6. The contention of learned counsel for petitioner is untenable. The respondent has filed suit, based on the mortgage for sale of the mortgaged property, on the failure of the petitioner, to pay the amount as fixed by the Court, within the time limit fixed by the Court. The petitioner failed to pay the amount, as per the preliminary decree, passed under Order 34, Rule 14 of CPC. The respondent filed application for final decree. A final decree for sale was passed, as per Order 34, Rule 5 of CPC. The petitioner has not filed any appeal against the Final Decree. The execution petition is filed for sale of the property, as per Order 34, Rule 15 (2) of CPC. Order 34, Rule 15 reads as follows:- 15. Mortgage by the deposit of title-deeds and charges: (1) All the provisions contained in this order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of Section 58, and to a charge within the meaning of Section 100 of the Transfer of Property Act, 1882 (4 of 1882) (2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree. Rule 15(2) clearly states that after obtaining a decree based on equitable mortgage created by mortgagor, mortgagee can bring the property for sale to realise the amount decreed under mortgage. 7. From a plain reading of the said Rule it is clear that the contention of the petitioner counsel that the respondent has to file a separate suit under Order 34, Rule 14 of CPC is untenable. The respondent has filed a suit for sale for recovery of amount due under mortgage. A Final Decree has been passed for sale of mortgaged property. Further, it is not the case of the petitioner that he obtained stay of preliminary decree in the first appeal filed by him or obtained stay of final decree. In the circumstances, the contention of the learned counsel for the petitioner is that application for final decree is pre-mature is also untenable. Further, it is not the case of the petitioner that he obtained stay of preliminary decree in the first appeal filed by him or obtained stay of final decree. In the circumstances, the contention of the learned counsel for the petitioner is that application for final decree is pre-mature is also untenable. Further, the Judgment relied on by the counsel for the petitioner is not applicable to the facts of the present case. In view of this fact, there is no infirmity or irregularity in the order passed by the learned Subordinate Judge, Ambasamudram, warranting interference by this Court. 8. In the result, the Civil revision petition is dismissed. No costs. Petition dismissed.