KULDIP SINGH Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) CHALLENGE in the present petition is to the order dated 14.10.2004, passed by the learned court below, whereby the objections filed by the petitioner in execution of the decree filed by the respondent- Bank, have been dismissed.

(2.) BRIEFLY , the facts are that the respondent-Bank filed a suit for recovery of Rs. 55,338.02 along with interest against the petitioner with the plea that way back in April, 1973, the petitioner took a loan of Rs. 23,400/- for purchase of Vicor JFMS-70 COMBINE HARVESTER. To secure the loan, the petitioner mortgaged his land. The petitioner having failed to repay the amount, the respondent-bank filed a suit under Order 34 of the Code of Civil Procedure. The same was decreed on 22.11.1993 for an amount of Rs. 55,338.02 along with future interest @ 9% per annum. Preliminary decree was drawn on 22.11.1993 granting the petitioner 3 months time to pay the amount. In case of failure, the bank was held entitled to move the court for passing of the final decree. In appeal, the judgment and decree of the trial court dated 22.11.1993 was upheld vide judgment and decree dated 24.5.1995, passed by the learned lower appellate court. Though no document is on record, however, it was stated by counsel for the petitioner that the respondent-bank filed execution of the decree passed in its favour. However, that was dismissed considering the fact that final decree against the petitioner had not been passed. On 2.11.1999, the respondent-bank filed an application before the learned trial court for passing of final decree. The application was disposed of by the learned trial court vide order dated 14.10.2004 opining that the application filed by the respondent-bank for passing of final decree was beyond limitation. However, as only a remedy was lost and not the right, it was directed that the decree so passed earlier be considered not as a decree against mortgaged property, but a simple money decree and is executable as such. The order attained finality as the petitioner did not challenge the same in any further proceedings. It is in execution petition filed thereafter by the respondent bank in which the petitioner filed objections, which were dismissed vide impugned order.

(3.) AFTER hearing learned counsel for the parties, I do not find any merit in the submissions made by learned counsel for the petitioner. The undisputed facts on record are that the petitioner, who is shown to be a Member of Legislative Assembly in the judgment of the trial court, raised loan of Rs. 23,400/- from the respondent-Bank for purchase of Vicor JFMS-70 COMBINE HARVESTER. The same was sanctioned on 17.4.1973 and requisite documents were executed by the petitioner. The petitioner having failed to repay the loan, the respondent-bank filed a suit for recovery of Rs. 55,338.02 along with interest @ 9.5% with half yearly rests on 23.12.1987. After contest the learned trial court decreed the suit along with future interest @ 9% per annum on the decretal amount of Rs. 55,338.02 from the date of filing of the suit till repayment. The judgment and decree was passed on 22.11.1993. As it was a suit filed under Order 34 CPC, the bank having been secured for the debt by way of mortgage of property, in terms of provisions of Order 34 Rule 4 CPC, the petitioner was granted 3 months' time to pay the decretal amount and in case of failure, the respondent-bank was at liberty to move the court in terms of Order 34 Rules 5 and 6 CPC.