THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Appeal Suit No.1010 of 2013 Between:
Durisetti Nagamani And Dated 02nd July, 2014 …Appellant Mohd.Gouse Pasha and another …Respondents Counsel for the appellant: Sri T.P.Acharya Counsel for the respondents: Sri Kadaru Prabhakara Rao The Court made the following:
JUDGMENT:
This appeal is taken up for hearing with the consent of the learned counsel for both the parties.
The respondents filed O.S.No.36 of 2012 on the file of the learned I Additional District Judge, Khammam for passing a decree for recovery of money based on mortgage. The Court below passed a judgment on 04.10.2013, wherein it is observed that the appellant did not file written statement and did not choose to cross examine the witnesses. The lower Court has therefore observed in its judgment that the suit is “preliminary decreed as prayed for”. However, a perusal of the decree shows that no preliminary decree has been passed and phraseology of the decree suggests that a money decree has been drafted.
The learned counsel for the appellant contended and the same is not disputed by the learned counsel for the respondents that in a suit based on mortgage, the Court has to pass a preliminary decree in terms of Order XXIV Rule 2 CPC. The learned I Additional District Judge, Khammam has failed to follow the procedure set out in the said provision. Therefore, the decree is not sustainable.
The learned counsel for the appellant stated that some of the applications filed by his client were pending in the Court when the suit was disposed of and that his client was not given proper opportunity to re-present the written statement which was earlier returned.
In my opinion, it would be in the interests of justice that the appellant is given an opportunity to re-present the written statement and to contest the suit.
Accordingly, the judgment and decree of the lower Court are set aside. The lower Court is directed to permit the appellant to re-present the written statement and contest the suit. The lower Court is also directed to hear the suit on a day-to-day basis and dispose of the same within three months from the date of receipt of a copy of this order.
The appeal suit is accordingly allowed.
As a sequel to disposal of the appeal suit, A.S.M.P.Nos.1004/14 and 3118/13 shall stand disposed of as infructuous.
02nd July, 2014 C.V.NAGARJUNA REDDY, J
VGB