NATHU RAM Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) Relying upon the judgment in the case of Ram Nath v. Deokinandan Krishna and Ors., A.I.R. 1947 Allahabad 83 learned counsel for the petitioner contended that the learned executing Court has erred in dismissing the application preferred by him praying for the dismissal of the execution petition. It is argued that the basic decree passed by the learned trial Court dated 11.9.1995 was only a preliminary decree and not a final decree which could be executed in accordance with the provisions of the Code of Civil Procedure.

(2.) In order to appreciate this contention reference to basic facts would be inevitable. State Bank of India, a body corporate, filed a suit for recovery of Rs. 6,39,483.00 against M/s Jai Shakti Enterprises and its partners. The prayer in the plaint was for decreeing the above amount with interest and for its realisation by sale of the mortgaged property. The learned trial Court vide its judgment and decree dated 11.9.1995 passed the decree and granted the following relief to the Bank:-

(3.) The said decree has neither been appealed against nor its execution stayed by the Court of competent jurisdiction. The petitioner herein failed to satisfy the decree in terms thereof resulting in filing of execution application by the Bank. The Bank filed an application for passing a final decree and putting the house to auction. Notice of the said execution application was sent to the judgment-debtors. Vide order dated 15.2.1997 the learned trial Court came to the conclusion that the decree was already passed on 11.5.1995 and called upon the judgment-debtor/petitioner herein to satisfy the decree failing which warrant of sale was ordered to be issued on the dates fixed. Thereafter the judgment-debtor appeared in the execution proceedings and filed objections on 2.4.1998. Another objection earlier filed by the petitioner were also dismissed by the trial Court vide its order dated 3.12.1998. Even that order passed by the learned executing Court was not assailed in any proceedings by the judgment-debtor.