MATHEW Vs. BANK OF COCHIN LID

JUDGEMENT

(1.) THE fourth defendant-judgment-debtor is the revision petitioner and this petition is filed against an order passed by the executing court rejecting his objection to the proposed sale of the property THE decree is one passed by the Ernakulam Sub-Court for realisation of money charged on the decree schedule properties and from the defendants. It was one passed not ex parte but after the defendants entered appearance in the suit and put forward their contention. In execution of the decree the defendants raised various contentions against the sale of the property and at the same time began to neglect the preservation of the decree schedule properties and so the decree-holder moved for appointing a Receiver. That was allowed by the executing court and on revision to this Court as C R P. 861 of 1979 the same was confirmed with a direction to the decree-holder to take early steps to sell the property. In the meanwhile this execution case was transferred to Thodupuzha Sub-Court along with other cases as per orders of the High Court. THE High Court order was due to the fact that as a Sub-Court was located at Thodupuzha on the formation of Idukki district, cases triable or executable by that Court and pending in the Ernakulam Sub-Court should be transferred under s. 24 CPC. Some of the decree schedule properties in this case are in the area within the jurisdiction of the Thodupuzha Sub-Cour t and some are within the jurisdiction of the Kottayam Sub-Court . Subsequently the decree-holder moved the Thodupuzha Court to nominate a person as Receiver; Advocate shri. P. T. Jose was appointed as Receiver and he took possession of the properties. As the amount due to the decree-holder exceeded Rs. 2,50,000/- they were anxious to realise the amount and they renewed their prayer to proclaim and sell the properties. THE same was allowed after notice. THE petitioner's properties were put up for sale on 23-2-1980. On 15-2-1980 the petitioner filed an application stating that the decree is a nullity and in any event the execution proceedings taken in the Thodupuzha Sub-Court are without jurisdiction. THE decree-holder took notice of it and the court by the order sought to be revised dismissed the application stating that there is no merit in the same. This is challenged in this revision petition.

(2.) IT is true that the order of the lower court is very brief but that does not vitiate the conclusion in the background of the various earlier steps taken in execution in this case.

(3.) STILL another attack on the decree is that the suit being one for realisation of amount due under a mortgage the trial court acted without jurisdiction in passing a decree for realisation of the amount in violation of Order XXXIV C. P. C. In 1973, Order XXX1v C. P. C. as it amended by the Kerala High Court permitted a single decree for sale without first passing a preliminary decree and then a final decree. The argument is that this amendment being a delegated legislation under S. 122 CPC is invalid for the reason that the legislature was not competent to delegate this power to the high Court. There is no substance in this plea as well. In respect of practice and procedure to be followed in the trial of suits the High Court is the competent body to judge the local requirements, and the procedure the High Court has to follow to make necessary changes are all provided for by the legislature itself. These are enough to show that the delegation is unassailable. Even assuming the amendment is invalid, the failure of the trial court to pass a preliminary decree and a final decree does not make the decree passed a nullity. There is no want of inherent jurisdiction in the court to pass such a decree. If the petitioner was aggrieved he should have taken the decree in appeal and got it vacated. He cannot contend in execution that the decree is a nullity.