JUDGMENT Prakash Krishna, J.
1. The present writ petition arises out of an order passed in execution case. The petitioner is a judgment debtor and the respondent No. 1 is decree holder.
2. The facts in brief are as follows:
Rahim Bux, the father of respondent No. 1 mortgaged his property in favour of Sri Sidhu Noor Bux Son of Sri Makdhoom Bux by way of usufructuary mortgage on 17.6.1924 for Rs. 250. The respondent No. 1 (hereinafter called as decree holder) filed a suit being Suit No. 530 of 1980 against the petitioner (hereinafter called as judgment debtor) and others for redemption of the mortgaged property executed by Rahim Bux, the mortgage deed dated 17.6.1924. The suit after contest was decreed on 23.11.1995 by the trial court with the condition that the decree holder is entitled to get possession over the mortgaged property on deposit of Rs. 250 in the Court. The said decree has been confirmed in Civil Appeal No. 54 of 1996 by the appellate court on 12.12.1996. The petitioner filed second appeal being Second Appeal No. 3467 of 1997 before this Court which was admitted on 8.4.1997 and is still pending consideration. On the stay application the Court has passed the following order:
Issue notice.
The execution can proceed for one half of the property mentioned in Paper 145 Ka (Mortgage dated 30.6.1924) executed by Mst. Batoolan.
It appears that this Court passed the above order on the plea raised by the petitioner who is appellant in above second appeal that subsequently on 30.6.1924 Mst. Batoolan urf Maulukhan W/o Hafij Abdul Gafoor had also mortgaged her property by way of registered mortgage deed for Rs. 150 described in the mortgage deed. The said mortgage is not the subject matter of the suit. The execution of the mortgage by Mst. Batoolan is being disputed by the decree holder (respondent No. 1)
3. In view of the partial stay order granted by this Court in the aforesaid second appeal there was no hindrance in the execution of the decree for the remaining property. The decree holder put the decree for execution in respect of the property not covered by the aforesaid interim order passed by this Court. The executing court on the application dated 17.11.1998 of the decree holder, appointed a Court Amin to prepare a map and submit report separating northern and" southern portion of the house in dispute. According to the judgment debtor (petitioner) half of the southern portion of the house in dispute was mortgaged by Smt. Batoolan in respect thereof said stay order is operative. The Court Amin submitted a map and report dated 20.2.1999 excluding the portion covered by Paper No. 145-Ka (mortgage deed dated 30.6.1924). The map and the report prepared by the Court Amin has been annexed along with the counter-affidavit as Annexures-3 and 4 thereof. One of the objections raised by the judgment debtor under Section 47, C.P.C. which was pressed before this Court is, that the decree in question being preliminary decree is not liable to be executed unless and until a final decree is drawn. The said objection has been rejected by both the courts below, against which present writ petition has been filed.
4. Heard Sri S. U. Ansari, advocate, learned Counsel for the petitioner and Sri S. A. Ansari, advocate, learned Counsel for the decree holder. The parties have exchanged counter and rejoinder-affidavits and therefore writ petition was heard finally with their consent at the admission stage as provided under Chapter 22 Rule 3 of the Rules of the Court, it is being disposed of.
5. The only question which was pressed by the learned Counsel for the petitioner is that the decree in question being preliminary decree, is not executable. No other point was pressed by him.
6. A copy of the decree has been filed as Annexure-1 to the counter-affidavit, it directs the plaintiff to pay a sum of Rs. 250 to the defendant within a period of four months. Thereafter the defendants have been directed to deliver the possession of the house in question to the plaintiff. It is further provided that whatever amount of interest on the mortgaged money amounting to Rs. 250 is there it has been adjusted towards usufruct of the house. After the payment of mortgaged money no other amount 'shall be payable by either of the parties. The trial court under the decree has also directed the defendants to return all the documents relating to mortgage which are in their possession to the plaintiff along with delivery of possession of the disputed house. It further provides that on the failure of the plaintiff to pay the aforesaid amount, as directed above, it will be open to the defendant to apply for preparation of the final decree under Order XXXIV, Rule 8, C.P.C.
7. The question which requires consideration is what is nature of the decree passed by the trial court. The contention of the learned Counsel of the judgment-debtor is that the aforesaid decree is in the nature of preliminary decree and as such is not executable. He has placed reliance upon certain decisions which will be considered at the appropriate place. Learned Counsel has assumed while making aforesaid submission that in every case of redemption of mortgage preliminary decree has necessarily to be passed. On this basis he has proceeded with the argument and has placed reliance upon Order XXXIV, Rule 8, C.P.C. At this stage it is apt to consider the cases relied upon by the judgment-debtor. Reliance has been placed upon K.L. Selected Coal Concern v. S.K. Khan Sons and Company . In this case the Supreme Court has held that the pleas regarding validity of the decree neither taken in the executing court nor before this Court, cannot be permitted to be raised before Supreme Court. It has no relavancy even remotely with the question raised in the present writ petition. The next case relied upon is Bashir Uddin v. B.R. Murlidhar . In this case the decree for partition was passed. It was held that the decree involved therein was in the nature of preliminary decree and final decree as contemplated in Section 46 was not passed. In this situation the High Court proceeded to decide the controversy. The main question involved therein was with regard to the question of limitation. This ruling also does not advance the contention of judgment debtor. Strong reliance has been placed upon the judgment of this Court in Awdhesh Singh v. IInd Additional District Judge, Deoria 1996 AWC 1444. In that case suit was for foreclosure of the mortgage. This case is also distinguishable on facts. In the case in hand the suit is for redemption of usufructuary mortgage at the instance of mortgagor. The decision in the case of Awdhesh Singh proceeded on the basis of provision contained in Order XXXIV, Rule 2, C.P.C which deals with passing of the preliminary decree in suit for foreclosure.
8. Order XXXIV, Rule 7(1)(c)(ii) is the relevant provision.
9. Coming to the facts of the present case on a bare perusal of the decree passed by the trial court it would be clear that only obligation of the plaintiff under decree was to deposit Rs. 250 within the period of four months which the plaintiff (decree holder) did. It is not in dispute that the decree holder has not deposited the aforesaid amount within the aforesaid period. The court below has noticed the fact that the amount has been deposited by the plaintiff decree holder. The only objection at the instance of judgment debtor is that money has been deposited in the Court instead of paying it to the defendants. The Court below has rightly observed that it is open to the judgment debtor to withdraw the aforesaid amount. The decree also provides that no other sum is payable by either of the parties and interest amount on the mortgaged money stood satisfied by usufruct of the house. On the plain reading of the decree it cannot possibly be said that except deposit of Rs. 250 within period of four months anything more was required to be done either by the plaintiff decree holder or by the Court. On the deposit of the amount the defendant judgment-debtors were required to deliver back the house along with the documents relating to mortgage to the decree holder. However in case of failure of the plaintiff right was given to the defendant judgment-debtor to apply for preparation of the final decree. Therefore it is clear that the decree passed by the trial court is in the nature of final decree so far as it concerns with the plaintiff decree holder.
10. Manika Chatti v. Kuppuswamy Asari AIR 1926 Mad 644, is the authority for provision that if the decree is really preliminary decree it would no doubt be necessary to have a final decree before the application for execution of decree could be entertained. But it is not absolutely necessary that in every mortgage suit there should be a preliminary decree, before final decree is passed. It has placed reliance upon the earlier judgment of its own court in (Siva) Subramania Pillai v. Rakhumuthu Mooppan AIR 1924 Mad 645.
11. The same High Court in Mari Mathu v. Aiyar Thurai AIR 1978 Mad 246, has held that the provision contained in Order XXXIV, Rules 7, 8 and 9 contemplating passing of the preliminary decree first and final decree at a later stage are for the purposes of giving opportunity to mortgagor to deposit mortgaged amount due to the mortgagee. But in a case where there was no dispute regarding amount due to the mortgagee and the mortgagor had deposited the amount even at the time of filing suit, Court can straightaway pass decree for redemption.
12. In Mansa Rajayyan v. Jaib Haris , it has been held that final decree may be passed straightaway without passing a preliminary decree. The passing of final decree without passing a preliminary decree will not make the decree null and void or inexecutable.
13. The up-shot of the above discussion is that whether the decree is preliminary or final in a suit for redemption of mortgage will depend upon the terms and conditions mentioned therein. In case where all the dispute between the parties with regard to payment of mortgaged money and interest accrued thereon is finally settled and no further accounting etc. is required to be done, such a decree would be final decree as it finally determines the right of the parties. Keeping this in mind if we examine the decree in question it is clear that the Court had clarified the position that mortgagor (plaintiff) was required to deposit Rs. 250 within a period of four months. After fulfilment of the said condition the plaintiff (mortgagor) decree holder was entitled to recover possession of the mortgaged property, i.e., house in question. The judgment debtor, mortgagee is under obligation of the decree, is required to deliver the possession to the decree holder along with all the documents pertaining to the mortgage.
14. Therefore the courts below have not committed any illegality in rejecting the objection of the petitioner and ordering delivery of possession of the property in question, in the light of stay order granted by this Court. Even otherwise it is not a fit case to interfere with the orders of the court below inasmuch as the exercise of jurisdiction under Article 226 of the Constitution is discretionary one.
15. The objection raised by the petitioner judgment-debtor is in the nature of technical objection to frustrate the decree obtained by the decree holder after contest. The Supreme Court in the case of Ravindra Kaur v. Ashok Kumar 2004 (1) AWC 750 (SC) : 2004 (1) SCCD 392 : AIR 2004 SC 904 (Para 22) followed in Gayatri Devi v. Shashipal Singh 2005 (2) AWC 1072 (SC) : 2005 AIR SCW 2070, has held as under:
Courts of law should be careful enough to see through such diabolical plans of the judgment-debtors to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forums only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system...
16. In view of the above discussion the writ petition lacks merit and is hereby dismissed with a direction to the executing court to proceed with the execution of the decree. There shall be however, no order as to costs.