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2023 DIGILAW 1261 (AP)

Namboori Surya Kumari v. Bandaru Seetamahalakshmi

2023-09-06

CHEEKATI MANAVENDRANATH ROY

body2023
JUDGMENT : 1. This Civil Revision Petition is directed against the order, dtd. 9/5/2022, passed in E.P. No.25 of 2016 in O.S. No.14 of 2008 on the file of the learned Senior Civil Judge, Kothapeta, whereby the E.P. filed for execution of the preliminary Decree, dtd. 28/6/2010, was dismissed. 2. Heard learned counsel for the petitioner. 3. Factual matrix of the revision may be stated as follows: The petitioner is the plaintiff in O.S. No.14 of 2008 on the file of the learned Senior Civil Judge, Kothapeta. He has filed the said suit against the respondent for recovery of money on the basis of a mortgage deed whereby the plaint schedule property was offered as security for the debt. The said Suit was decreed in the trial Court. Only a preliminary Decree was passed to that effect. But before filing a final Decree petition and before passing a final Decree as required under law, the petitioner has filed E.P. No.25 of 2016 to execute the said preliminary Decree to realize the due amount from the respondent. 4. The said E.P. No.25 of 2016 came to be dismissed by the impugned order on the ground that Execution Petition cannot be filed for execution of the preliminary Decree without passing a final Decree in a mortgage Suit. 5. Aggrieved thereby, the present revision is preferred by the petitioner. 6. Learned counsel for the petitioner has invoked Order XXXIV Rule 15(2) CPC and would contend that when a Decree orders payment of money and charges it on immovable property that on default of payment, the amount due may be realized by sale of that property in execution of the Decree. The said contention is absolutely devoid of any merit. For better appreciation of the said contention, Order XXXIV Rule 15 (1) and (2) CPC are extracted hereunder: "15. Mortgages by the deposit of title deeds and charges. The said contention is absolutely devoid of any merit. For better appreciation of the said contention, Order XXXIV Rule 15 (1) and (2) CPC are extracted hereunder: "15. Mortgages 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 Sec. 58, and to a charge within the meaning of Sec. 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." 7. As can be seen from the aforesaid provision, clause (1) thereof ordains that all the provisions contained in the said order i.e., Order XXXIV which apply to a simple mortgage, shall also as far as may be applied to a mortgage by deposit of title deeds within the meaning of Sec. 58, and to a charge within the meaning of Sec. 100 of the Transfer of Property Act. Clause (2) thereof ordains that when a Decree orders payment of money and charges it on immovable property that on default of payment, the amount may be realized by sale of that property in execution of that decree. 8. Clause (2) of Order XXXIV Rule 15 CPC is not pertaining to a mortgage decree. It pertains to a Decree which was passed for payment of money and if a charge is created on immovable property in the Decree for realization of the said money, then the rule says that it can be realized by executing that decree. There is any amount of difference between Decree passed in a mortgage suit and a Decree passed in simple suit for recovery of money by creating a charge on the immovable property at the time of passing the Decree. In a simple Suit filed for recovery of money, when it was decreed and a charge is created on immovable property in a Decree, then there is no need or necessity as per law to pass any final Decree to execute the same. So, the said Decree can directly be executed. But a mortgage suit altogether stands on a different footing. So, the said Decree can directly be executed. But a mortgage suit altogether stands on a different footing. When a suit is filed for recovery of money on the basis of a mortgage transaction, law requires to initially pass a preliminary Decree and then to pass a final Decree and it is only the final Decree that can be executed by way of filing an Execution Petition. But Execution Petition cannot be filed on the basis of a preliminary Decree. 9. In fact, the legal position in this regard is not res integra and the same has been well settled. The Common High Court at Hyderabad for the State of Telangana and Andhra Pradesh dealt with the issue elaborately in the case of Lanka Babu Surendra Mohana Benarji v. Canara Bank, Unguturu, 2015 (6) ALD 562 As per the facts of the said case, that was also a mortgage suit where a preliminary Decree was passed. But without obtaining a final Decree, Execution Petition was filed for realization of the decretal amount on the basis of preliminary Decree. The same contention that as per Order XXXIV Rule 15(2) CPC that Execution Petition is maintainable without passing a final Decree was taken. The two judgments which are now relied on by the learned counsel for the petitioner in the cases of Sri Rama Mandiram, situated at Badavaripalem v. Yadam Raghavamma, (1984) 1 ALT 8 and Sri Venugopala Swamy and Anjaneya Swamy temples represented by its Executive Officer v. Vucha Narayana, (1988) 2 ALT 347 (D.B.) are also cited before the Common High Court at Hyderabad in support of the contention raised that preliminary Decree can be executed without passing a final Decree. The Common High Court held at para No.63 as follows: "63. When sub-rule (1) of Order 34 Rule 15 makes all the provisions of Order 34 applicable to a simple mortgage also applicable to mortgage by deposit of title deeds within the meaning of Sec. 58 and to a charge within the meaning of Sec. 100 of the Transfer of Property Act, 1882, it cannot be construed that in a suit for recovery of money by sale of mortgaged property, sub-rule (2) of Order 34 Rule 15 would apply and enable the mortgaged property to be sold in execution of a preliminary Decree without there being a final decree." 10. At para No.68, it is held as follows: "68. At para No.68, it is held as follows: "68. Thus, sub-rule (2) of Order 34 Rule 15 would apply only when the Decree for the first time creates a charge on property belonging to the defendant such as a Decree for maintenance or recovery of arrears of rents. This provision cannot be invoked when suit is filed on the basis of a mortgage security." 11. Ultimately, at para No.76, while referring the judgment of the Apex Court reported in AIR 1963 SC 992 , it is held as follows: "76. In fact in Venkata Reddy : AIR 1963 SC 992 (supra), the passage extracted by the Division Bench itself indicates that in suits which contemplate the making of two decrees, a preliminary Decree and a final decree, the Decree which would be executable would be the final decree. This observation was not taken note of by the Division bench and it only took note of this later observation that finality of Decree does not necessarily depend upon its being executable." 12. The common High Court at Hyderabad in the above cited judgment after considering the earlier judgments of the Apex Court and various other Courts on the point and after considering the effect of Sec. 60 and 61 of the Transfer of Property Act, 1882, and Order XXXIV Rule 5 of CPC explained the reasons and the necessity of passing a preliminary Decree and a final Decree in a mortgage Suit and as to why Execution Petition cannot be entertained in a mortgage Suit on the basis of preliminary Decree at para Nos.47 to 49 of the judgment as follows: "47. The upshot of the decisions of the Supreme Court and the provisions of Sec. 60 and 61 of the Transfer of Property Act, 1882 and Order 34 Rule 5 C.P.C., is that the right to redeem the mortgage is a very valuable statutory right vested by the Legislature in the mortgagor and it is so sacrosanct that it cannot be allowed to be extinguished by any method except as provided by law. The Legislature further intended to see that that right is kept alive, (once the time for payment has been reached) : (i) till the passing of the preliminary decree; (ii) till the passing of final decree; (iii) till the mortgaged property is brought to sale under Order 21 Rule 64 C.P.C.; (iv) till applications for setting aside sale under Order 21 Rule 89 or 90 C.P.C. are decided; (v) till the sale becomes absolute; and (vi) till the appeals or other remedies against orders refusing to set aside the sale are passed finally. 48. Therefore, any interpretation which seeks to allow a decree holder in a mortgage suit to execute the preliminary decree passed therein, by bringing the charged properties to sale invoking Order 34 Rule 15 (2) C.P.C., cannot be said to be correct. Such an interpretation, if accepted, renders Order 34 Rule 5 C.P.C. entitling a defendant in such a suit to redeem the mortgage on complying with the conditions contained therein, to become redundant. 49. This view was expressed in Pujjuru Suryanarayana : 1991 (2) ALT 361 : 1991 (1) An. W.R. 38 (NRC) (FB) : AIR 1959 A.P. 622 (F.B.) (supra). In that case, a contention was advanced that a preliminary decree obtained in a suit for foreclosure of mortgage can be executed without obtaining a final decree. This contention was rejected. The Court held that a reading of Rules 2, 3 and 5 of Order 34 C.P.C. indicates that before a final decree is passed in a suit for foreclosure of a mortgage barring the defendant from all right to redeem the mortgaged property, the defendant is entitled to make payment into court and can apply for ordering the plaintiff to deliver all the documents referred to in the preliminary decree to the defendant and so till the passing of final decree, the defendant is entitled to redeem the mortgage. The court observed that Order 34 Rule 5 C.P.C. in fact gives an indication that at any time before the confirmation of the sale made in pursuance of the final decree passed under sub-rule (3) of Rule 5 of Order 34, the defendant can make a payment into court of the amount due from him and that only if he fails to do so, at the instance of the plaintiff, a final decree can be passed directing sale of the mortgaged property. Thus, till the passing of final decree and even till the confirmation of the sale made in pursuance of the final decree or the disposal of any appeal against orders passed under Order 21 Rule 89 or 90 C.P.C., a right to redeem continues to subsist in the mortgagor." 13. Then at para No.59 of the judgment, while dealing with the applicability of sub-rule (2) of Order XXXIV Rule 15 of CPC to mortgage suits, held as follows: "59. In my considered opinion, sub-rule (2) of Order 34 Rule 15 is intended to apply to suits where there is no prior charge until it was created by the decree, and in such a suit there is only a right to recover from the charged property, and there is no equity of redemption vested in the mortgagor. In such a suit where charge is created for the first time under a decree, sub-rule (2) of Order 34 Rule 15 permits the property to be brought to sale without a final decree." 14. Thus, the Common High Court clearly held that Execution Petition is not maintainable to execute a mortgage Decree on the basis of a preliminary Decree that was passed without obtaining a final decree. 15. Therefore, in view of the law enunciated in the above judgment, the impugned order of the executing Court dismissing the E.P as not maintainable without obtaining a final Decree is perfectly sustainable under law and it calls for no interference in this revision. 16. Resultantly, the Civil Revision Petition is dismissed. However, the revision petitioner is at liberty to file a final Decree petition and then after final Decree is passed to seek execution of the said Decree according to law. No costs. As a sequel, miscellaneous applications, if any pending, shall stand closed.