AWADESH SINGH Vs. IIND ADDL D J DEORIA

JUDGEMENT

(1.) D. K. Seth, J. Mr. Shashi Nindan, learned counsel for the petitioner, raised very interesting questions in the present case, namely : - (1) Whether a suit for possession claimed in terms of the condition of delivery of possession contained in mortgage deed without seeking relief of foreclosure comes within the purview of Order XXXIV requiring passing for preliminary decree and then drawing up a final decree and whether such decree can be held inexecutable before final decree is passed in an objection under Section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code') after the decree is satisfied by delivery of possession. (2) Whether such a decree can be negatived by reasons of Sections 4 and 5 of the U. P. Debt Relief Act, 1977 and the possession already delivered could be restored to the judge ment debtor.

(2.) THE brief facts relating to the present case are summarised as follows :

(3.) A plain reading of the plaint (Annexure 1) as translated at the Bar by Mr. Shahshi Nandan reveals that it contains a prayer that in case a decree for possession is not possible, in that event, the principal and the interest payable may be decreed. The said prayer has been couched as prayer No. 3. The first prayer was a decree for possession while the second prayer as for a decree for a sum of Rs. 3600 being the occupation charges payable by the defendant. The plaint in paragraph 2 has given the particulars of the mortgage as is required in the pleading for a suit for foreclosure which is provided in Form No. 45 Appendix A to the Code. They also claimed an alternative decree for principal and interest in case the first two reliefs are found not available. The description of the property is also included in the plaint as is requried in the pleading of a suit for foreclosure.