DEVABATHINA PARADESAIAH DIED Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) In this matter, P.S. Narayana, J. was considering the question regarding the maintainability of Execution Petition on the ground that the decreeholder had already filed a petition for passing of final decree and the said application was dismissed on the ground of limitation and, therefore, the decreeholder was not entitled to ignore the same and file the execution petition. The learned Judge noticed a Division Bench judgment of this Court in Venugopala Swamy and Anjaneya Swamy Temples, represented by its Executive Officer v. Vucha Narayana and others wherein it was observed that Order 34 sub-rule (2) of Rule 15 of Code of Civil Procedure (C.P.C. for brevity) authorises the decreeholder to execute the decree in default of payment of the amount by bringing the charged properties for sale in execution of the very decree under which the charge was created and there is no need to obtain a separate final decree in order to enforce the charge on the properties. The learned Judge also noticed another judgment of this Court in Tiruvengalam v. Ammanna- wherein it was held that though a decree declares a charge on the property, it is not one made under Order 34 Rules 14 and 15 C.P.C. The learned Judge observed that in the light of the facts and circumstances of the case and also in the light of the general importance involved in the matter, he was inclined to refer the following two questions to be decided by a Division Bench of this Court and directed the Registry to place the papers before the Hon'ble the Chief Justice for obtaining appropriate orders in this regard. That is how the matter has been placed before this Bench.

(2.) The questions to be decided are as follows:

(3.) The short facts are as follows: The State Bank of India, Kavali Branch has filed a suit against the petitioners herein for recovery of Rs.41,673-50 ps. being the principal and interest amount due on term loans and crop loans borrowed by one Sri Devabathina Paradesaiah (1st petitioner) from the bank by executing hypothecation agreement for crops in the plaint schedule land and payable with interest being 1.5% per annum on the State Bank of India advance rate with a minimum of 15% per annum. A preliminary decree was passed on 7-12-1989 in the following terms: