A RAMASWAMY IYER Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The judgement-debtor who is the petitioner in this revision is aggrieved against the order passed in E.P. 98 of 1984 in O.S. 66 of 1981 on the file of the Sub Court, Nagarcoil, in which execution was ordered after rejecting all his objections.

(2.) O.S. 86 of 1981 is an action laid for recovery of money on a promissory note and also for recovery of money on a mortgage. The suit came to be decreed on 5-3-1983. It is true that the decree dated 5-3-1983 does not conform to the form prescribed in the C.P.C. Nonetheless, a final decree application was presented in I.A. 547 of 1984. Ultimately, a final decree came to be passed on 27-10-1984. So far as the final decree is concerned, it is common ground that, it conforms to the form provided under the Civil P.C. On the strength of the final decree, the respondent decree-holder levied execution and was bringing the hypotheca to sale. It is at that stage, several objections were raised by the present petitioner-judgement-debtor. As already stated all the objections were overruled by the Court below.

(3.) Learned counsel for the petitioner would submit that the decree dated 5-3-1983, as it reads, will not be a preliminary decree as visualised under the Civil P.C., on the other hand, it is a mere money decree; while so, even the final decree passed on the strength of the said defective decree dated 5-3-1983 will not be a valid one. It is thus, according to the learned counsel for the petitioner, he can challenge the very executability of the final decree itself. The other point urged by the learned counsel for the judgement-debtor petitioner is that the preliminary decree provided only interest at 6 per cent per annum, and, therefore, the decree-holder is not entitled to claim interest at 12 per cent per annum, as he had done in his execution petition.