IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 2064 OF 2015 BETWEEN:
1. B.S.BALACHANDRA, S/O LATE B.SRINIVASA SUBRAMANYAM AGED 55 YEARS 2. B.S.VARADARAJA, S/O LATE B.SRINIVASA SUBRAMANYAM AGED 50 YEARS BOTH ARE RESIDENTS OF PURADAMANE HATHUR VILLAGE, BELLUR POST, N.R.PURA TALUK, CHIKKAMAGALUR DISTRICT – 577134.
...APPELLANTS (BY SRI.P.N.HARISH, ADVOCATE) AND:
1. M/S.SYNDICATE BANK KOPPA-KADUR BRANCH, KOPPA TALUK-577126, CHIKKAMAGALUR DISTRICT, REP. BY ITS MANAGER.
2. LAXMAMMA, W/O LATE B.SRINIVASA SUBRAMANYAM AGED 87 YEARS, RESIDENT OF PURADAMANE HATHUR VILLAGE, BELLUR POST, N.R.PURA TALUK, CHIKKAMAGALUR DISTRICT-577134.
3. JALAJAKSHI W/O RAGHUPATHI, D/O LATE B.SRINIVASA SUBRAMANYAM AGED 64 YEARS, GUDDE THOTA POST & VILLAGE, JAYAPURA, KOPPA TALUK – 577126, CHIKKAMAGALUR DISTRICT.
4. KASTURI, W/O LATE THIMMAPPA, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 62 YEARS, R/O HATHUR VILLAGE, BELLUR POST, N.R.PURA TALUK – 577134, CHIKKAMAGALUR DISTRICT.
5. SAVITHRAMMA, W/O LATE BALAKRISHNA D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 59 YEARS, EMPLOYEE IN SYNDICATE BANK, SRINGERI BRANCH, SRINGERI-577139, CHIKKAMAGALUR DISTRICT.
6. BHAGYALAKSHMI SHOWN AS INDIRA, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 61 YEARS, R/O BHARATIPURA BALEHOLE POST, KALASA MUDIGERE TALUK-577132, CHIKKAMAGALUR DISTRICT.
7. MEENAKSHI, W/O SRINIVASA, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 57 YEARS, KAMALE, MANIGE POST, SRINGERI TALUK -577139, CHIKKAMAGALUR DISTRICT 8. RANGAMANI, W/O NAGARAJ.Y.S, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 51 YEARS, R/O D.NO.508, ‘AVINASH NILAYA’ NEAR CHURCH, AMS LAYOUT, VIDYARANYAPURAM BENGALURU – 560097.
9. VIJAYAKUMARI, W/O KRISHNAMURTHY, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 54 YEARS, R/O. MADODI, NEMMAR POST, SRINGERI TALUK – 577139, CHIKKAMAGALUR DISTRICT 10. RADHA, W/O RAMA KRISHNA, D/O LATE B.SRINIVASA SUBRAMANYAM, AGED 48 YEARS, R/O KAMALE, MANIGE POST, SRINGERI TALUK-577139, CHIKKAMAGALUR DISTRICT 11. H.K.GOPALARAO, S/O KRISHNAIAH, AGED 45 YEARS, R/O HEBBIGE, ADAGADDE POST, SRINGERI TALUK – 577139, CHIKKAMAGALUR DISTRICT …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATE:06.10.2015 PASSED IN RA.NO.141/2013 ON THE FILE OF THE II ADDL.DISTRICT JUDGE, CHIKMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 01.04.2013 PASSED IN F.D.P.NO.08/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL.JMFC, TARIKERE, ALLOWING THE PETITION FILED UNDER ORDER 34 RULE 4(3) R/W 151 OF CPC.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The defendants have filed the top noted second appeal questioning the judgment and decree dated 6.10.2015 passed in RA.No.141/2013 confirming the judgment and decree dated 1.4.2013 passed in FDP.No.8/2006.
2. The facts leading to this case are as follows:
The first respondent-Bank filed the suit for recovery in O.S.No.42/2001 against the present appellants herein for a sum of Rs.1,72,806/-. The appellants on receipt of notice contested the proceedings. The trial Court having examined the documentary evidence adduced by the Bank and the contention raised by the appellants herein decreed the suit in favour of the first respondent-bank on 5.11.2005 for a sum of Rs.3,36,042/- together with interest at 17.25% per annum from 05.05.2006 till the date of full realization of the decreetal amount directing the appellants herein to pay the said amount on or before 5.5.2006.
On receipt of notice, the present appellants herein though appeared did not contest the proceedings by filing objections. The trial Court in the final decree proceedings formulated the following points for consideration:
“1.Whether the present petition filed by the plaintiff/petitioner/bank seeking drawing of final decree in terms of the preliminary decree passed in O.S.No.42/2001 dated 05.11.2005 deserves to be allowed?
2.What order?”
The first respondent-Bank examined the Branch Manager as P.W.1. The trial Court after having examined the certified copy of the preliminary decree and the oral evidence of P.W.1 and in the absence of rebuttal evidence by the appellants herein in regard to repayment after passing of judgment and decree in Original suit proceeded to draw a final decree in terms of Order XXXIV Rule 4(3) read with Section 151 of CPC. Being aggrieved by the said order, the appellants have preferred the appeal in R.A.No.141/2013.
The main contention raised by the appellants before the lower appellate Court was that the final decree drawn by the trial Court is illegal, opposed to law and hence prayed to allow the appeal setting aside the order passed in FDP.No.8/2006. The lower appellate Court having examined the material on record recorded a finding of fact that the appellants herein are virtually trying to protract the proceedings with an ulterior motive to drag on postponement of delivery of possession of the mortgaged property. Accordingly, the lower appellate Court set aside the contention of the appellants herein and dismissed the appeal. Against the concurrent findings of the Court below the appellants are before this Court.
3. The learned counsel for the appellants would argue that the Courts below were not justified in entertaining the FDP proceedings in the suit filed for recovery of money. He would vehemently contend that in the absence of liberty for initiation of final decree proceedings, the final decree proceedings initiated by the first respondent-Bank is not maintainable.
4. Having heard learned counsel for the appellants and having examined the judgments of both the Courts below, this Court is of the view that the judgment and decree passed in O.S.No.42/2001 is in fact a preliminary decree. Admittedly, there was a mortgage which was much prior to the filing of the suit and in that view of the matter, the case falls under the provisions of Order XXXIV of CPC and the property charged or mortgaged cannot be brought to sale without a final decree. The contention of learned counsel for the appellants that the final decree proceedings is not maintainable is not at all tenable. The preliminary decree in the mortgage suit is not executable in the absence of a final decree obtained in the suit. A decree in a mortgage suit some times decides all the issues and what is left out is only the action to be taken in the event of non-payment of amount. In the event of non- payment of the amount, the plaintiff gets the right to seek a final decree either for foreclosure or sale. The equity of redemption has been well recognized in common law as well as Transfer of Property Act, 1882. The mortgager owes an obligation secured by the mortgagee. The appellant inspite of preliminary decree passed in O.S.No.42/2001 has not come forward to repay the amount and the appellant being aggrieved by the preliminary decree has also not challenged the preliminary decree passed in O.S.No.42/2001 and as such is precluded from disputing its correctness in an appeal preferred from a final decree passed in FDP.No.8/2006. On account of failure to repay the amount, the Court below exercising the powers under the provisions of Order XXXIV Rule 4 of CPC has rightly passed appropriate orders. The appellate Court has rightly dismissed the appeal. No substantial question of law would arise for consideration in this appeal.
Accordingly, the appeal stands dismissed.
Sd/- JUDGE *alb/-