(1.) In this matter, P.S. Narayana, J., was considering the question regarding the Maintainability of Execution Petition on the ground that the decree holder had already filed a petition for passing of final decree and the said application was dismissed on the ground of limitation and, therefore, the decree holder 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 Ors., 1988 (2) APLJ 40, wherein it was observed that Order 34 Sub-clause (2) of Rule 15 of Code of Civil Procedure (CPC, for brevity) authorises the decree holder 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 this charge on the properties. The learned Judge also noticed another judgment of this Court in Tiruvengalam v. Ammanna, AIR 1967 AP 206, wherein it was held that though a decree declares a charge on the property is not one made under Order 34, Rules 14 and 15 CPC. 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 Supreme 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. The questions to be decided are as follows:
(2.) 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 respondent) 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:
(3.) The time for redemption was granted till seventh day of June, 1990. However, no application was filed by the judgment-debtors for extension of time for payment. No permission was also granted by the Court extending the time for payment from June, 1990. The judgment debtors did not pay any amount either in the Court or to the bank within the time specified in the decree i.e. till seventh day of June, 1990. A final decree petition under Order 34, Rule 5 CPC, was filed in IA. No. 284 of 1993 on 21.7.1993. According to the judgment Debtors, the application for grant of final decree, in terms of the preliminary decree, should have been filed in the Court within three years from the date of passing of the preliminary decree dated 7.12.1989, but the bank has filed the petition for grant of final decree on 21.7.1993 long after the expiry of the limitation period. By reason of the order dated 21.3.1996, the Court below dismissed the said petition as barred by limitation.