GURDIAL SINGH Vs. ORIENTAL BANK OF COMMERCE

JUDGEMENT

(1.) This is a revision petition filed by Gurdial Singh petitioner, directed against the order passed by the learned Civil Judge (Senior Division) , Karnal, dated 26-3-1998. By virtue of the impugned order, the learned Court dismissed the objections filed by the petitioner.

(2.) The relevant facts are that respondent-Oriental Bank of Commerce had filed a civil suit against the petitioner Gurdial Singh. It has been asserted that a loan had been advanced to the petitioner with interest. The petitioner even had mortgaged the land measuring 95 Kanals, 16 Marlas. The civil suit was decreed ex parte on 11-2-1985. The operative part of the judgment dated 11-2-1985 rendered by the learned Senior Sub Judge, Karnal, reads as under :-"thus, as a result of above discussion, the suit of the plaintiff succeeds and a decree for recovery of Rs. 84,054. 55 with cost is passed in favour of the plaintiff and against the defendant. Future interest at the stipulated rate from the date of suit till realisation of the amount is also awarded to the plaintiff. Mortgage decree as prayed for is also passed in favour of the plaintiff in respect of the land described in para No. 5 of the plaint and in case the defendant fails to repay the decretal amount within 3 months, final decree as per provisions of Order 34, CPC will be deemed to have been passed in favour of the plaintiff. "

(3.) In terms of the said judgment, decree sheet has also been drawn and it is similarly worded. In execution of the abovesaid decree, the petitioner had filed objections. It was asserted that the execution application is not maintainable because the same is being filed on the basis of a preliminary decree passed. No final decree as yet has been drawn. The mandatory provisions of Order 34, Rule 5 of the Code of Civil Procedure (for short "the Code") have not been complied with and, therefore, the decree is not executable. The objections were contested. The respondent-Bank besides asserting that the present objections are barred by res judicata, took up the plea that the judgment and decree is being executed and the plea that it is not executable is without basis.