DINAMANI DASS Vs. BIMBADHAR PADHAN

JUDGEMENT

(1.) ON 17th of March, 1949 a preliminary decree for foreclosure was passed directing the defendants to pay Rs. 1220 with interest at the rate of 9 per cent from the date of the suit bond together with an additional sum of Rs. 80 within a period of six months from the date of the preliminary decree. In default of such payment the preliminary decree directed that the plaintiffs were entitled to apply for a final decree that the defendants were debarred from redeeming the hypothecated property. This decree was ultimately confirmed in second appeal No. 25 of 1950 on 26-11-51. There were some interim steps taken by the defendants which need not be mentioned. The decree was made final on 18th of November, 1953. On 22nd February 1956 the plaintiffs decree-holders filed Execution Case no. 59 of 1956 for delivery of possession of the mortgaged property. An objection under Section 47, C. P. C. was filed by the judgment-debtors that both the preliminary and final decrees were not drawn in proper form and that there was no direction in the final decree for delivery of possession. The objection was dismissed on 19-4-56. In appeal the District Judge upheld the objection and directed to amend the preliminary and final decrees and to draw them up in proper form in the suit itself. The trial court suo motu amended the preliminary decree on 4-12-56 without making any provision for a grace period and without notice to the defendants. He also amended the final decree on 22-12-56 without notice. The decree-holders themselves filed an application for amendment of the preliminary and final decrees. The preliminary decree was amended on 11-5-57 and the final decree on 28-6-57 without notice to the defendants. The plaintiffs levied execution in Execution Case No. 253 of 1957 on 5-8-57. The judgment-debtors again filed their objection. The executing court upheld their objection. An appeal at the instance of the decree-holders was dismissed but there was a direction that the preliminary decree as well as the final decree were to be amended. On 13-12-64 the decree-holders again filed an application for amendment of the preliminary decree. It was amended on 13-9-65 without notice to the defendants. On the objection of the defendants that the amendment was allowed without notice to them and without hearing the matter was heard. On 28-4-66 the Subordinate judge, Kendrapara passed an order directing fresh drawal of the preliminary and final decrees. Against this order, the civil revision has been filed,

(2.) MR. Ray for the defendants-petitioners raises some interesting arguments. He contends that all that were being directed by the court from time to time was for amendment of the preliminary decree and the final decree. In the preliminary decree, a period of grace is to be given and on non-compliance thereof, a final decree is to be passed as directed in the preliminary decree. As the final decree was passed on 18-11-53, a further period of grace cannot be given after it is amended in 1966.

(3.) FOR the reasons to be stated here-under, the civil revision is bound to be dismissed and I do not express any opinion on the aforesaid argument of Mr. Ray.