P SURYANARAYANA Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) This revision is filed against the order of the learned I Additional District Munsiff, Vijayawada, in E.P. No 145 of 1987 dated 12th July, 1989. whereby the execution petition filed by the bank-decree-holder for attaching the properties of the Judgment-debtor and to,issue arrest notice was allowed.

(2.) The first judgment-debtor is the petitioner in this revision. The bank-decree-holder filed O.S. No. 2711 of 1973 for foreclosure of the mortgage created in its favour by the defendants by deposit of title deeds. In the mortgage suit, a preliminary decree was passed on 27th July, 1974, under the provisions of Order XXXIV CPC. Subsequently, the decree-holder-bank filed I. A. No. 1037 of 1981 to condone the delay in filing the application for passing of the final decree. The same was dismissed by the court and it has become final. The fact remains that no final decree is passed in the mortgage suit in favour of the decree-holder according to the provisions of Order XXXIV CPC.

(3.) Later, E.P. No. 145 of 1987 was tiled fore xecuting the preliminary decree dt, 27-7-1974 by attaching the moveable properties of the judgment debtor and also for the arrest, etc., One of the objections raised on behalf of the judgment-debtor was that this execution petition was not maintainable in view of the fact that no final decree was passed in the mortgage suit in O.S.No. 2711 of 1973. The preliminary decree, which was passed on 27th July, 1974, cannot be put in execution. Only a final decree that is passed under the provisions of Order 34 CPC pursuant to the preliminary decree can be put into execution. The objection raised in the execution petition was rejected by the learned Judge relying upon the provisions of sub-rule (2) of Rule 15 of Order XXXIV CPC. Questioning the said order, the present civil revision petition is filed by the first judgment-debtor as mentioned above. It is contended on behalf of the petitioner that sub- rule (2) of Rule 15 of Order XXXIV CPC has no application to a mortgage decree and that the reliance placed by the lower Court on the judgment of this Court in Kama Mandiram vs. Raghavamma is not sustainable. On the other hand, it is contended by Shri E.S. Ramachandra Murthy, learned counsel appearing for the decree-holder-bank, that sub-rule (2) of Rule 15 of Order XXXIV CPC clearly applies even to a mortgage decree. The relevant provision is as follows :