MOSA RAJAYYAN Vs. JACOB HARIS

JUDGEMENT

(1.) This revision by the 3rd judgment-debtor (3rd defendant in the suit) is directed against the order dated 28-2-1980 passed in E. P. No. 233 of 3975 in O. S. No. 134 of 1964 on the file of the Munsiff, Neyyattmkara, which was an application for recovery of the plaint schedule property, the suit for redemption having been decreed as early as on 31-3-1967.

(2.) The counsel for the petitioner submitted that the decree could not be executed inasmuch as it was not one passed in conformity with the provisions of Order XXXIV, Rule 7 of the Code of Civil Procedure, for no preliminary decree was passed preceding the decree that was sought to be executed, as required under that rule. He pointed out that the decree was passed on 31-3-1967 at a time when Order XXXIV of the Code of Civil Procedure stood without being amended by the Kerala amendment to that Order (concerning suits relating to mortgage of immovable property) which was brought into effect by the amendment dated 10-12-1973 published in the Kerala Gazette No. 3 dated 151-1974 and which contemplated, by Rule 4 thereof, the passing of a decree straightway without requiring the passing of a preliminary decree preceding it. It is also submitted by him that as required under Order XXXIV, Rule 7 (1) (c) (i) C. P. C., the amount due to the mortgagee was not deposited within six months from the date of the passing of the decree.

(3.) It is true that a final decree without the passing of a preliminary decree is seen to have been passed in this case at a time when the Kerala amendment to Order XXXIV C. P. C. had not come into force. It is also seen that the decree did not specify the date within which the amount due to the mortgagee was to be deposited by the plaintiff-decree-holder. That would not, however, render the decree null and void incapable of being executed. The relevant Rules in Order XXXIV C. P. C. contemplating the passing of a preliminary decree in the first instance, and final decree at a later stage, are intended to enable the court to determine the correct amount due to the mortgagee-defendant, and to give an opportunity to the mortgagee-plaintiff to deposit that amount within a specified time, on the fulfilment of which he is entitled to recover the property mortgaged. There might, however, be cases where the amount due to the mortgagee-defendant as stated in the plaint is admitted by him (mortgagee) and therefore, it might be possible for the court to pass a (final) decree straightway. Maybe that such cases might be few and far between; all the same possibility of such occasion arising could not be ruled out. It cannot therefore be contended that for the simple reason that a (final) decree, without a preliminary decree preceding it, has been passed, the decree is null and void. Even otherwise, once the decree is allowed to become final, without being appealed against, any irregularity, even illegality, unless it be a case of total lack of jurisdiction, would not render the decree null and void or incapable of being executed. The executing court is bound to allow the execution of the decree without going behind it.