LALMAN Vs. SHIAM SINGH

JUDGEMENT

(1.) A preliminary decree for sale of property was passed by the first Court of the Subordinate Judge of Mainpuri on the 15 of April 1921. The defendant mortgagor appealed against this decree to this Court on the 22 July, 1921. While the appeal was pending the mortgagee applied under Order 34, Rule 5(2) of the Civil P. C, for a final decree for sale and such a final decree was passed by the Subordinate Judge on the 19 of August 1922. The appeal to this Court was dismissed with costs on the 13 of February 1924.

(2.) The mortgagee applied to the Court of the Subordinate Judge for execution of the final decree, dated the 19 of August 1922, and to the amount of that decree he added the amount of costs granted by this Court under its decree dated the 13 of February 1924. The lower Court directed execution to take place though the judgment-debtor objected on the ground that the final decree of the 19 of August 1922 was not one binding between the parties as it was obtained on the basis of a preliminary decree which had not become final between the parties,

(3.) This is an appeal from an order in the execution department passed by the Subordinate Judge for the sale of property. The first ground of appeal raises the objection that the final decree of the 19 of August 1922 had been obtained before the preliminary decree between the parties became conclusive and so no execution proceedings can be taken on the basis of that final decree. We think that this argument must prevail on the basis of the Full Bench decision of this Court in Gajadhar Singh V/s. Kishen Jiwan Lal AIR 1917 All 163. It was held in that case by three learned Judges of this Court that the right of the plaintiff in a suit for sale to apply for a final decree accrued when the decree of the High Court was passed and not on the expiry of the six months allowed for payment by the Court of first instance. The learned Judge, Mr. Justice Banerji, who delivered the judgment of the Court reconsidered a decision he had previously delivered as a member of a Bench of two Judges in Madho Ram V/s. Nihal Singh AIR 1915 All 336. The learned Counsel for the respondent here desired the Court to hold that the Full Bench judgment only covered the question of limitation and that a mortgagee was at liberty to apply for a final decree either on the basis of the preliminary decree of the trial Court or on the basis of the preliminary decree of the High Court in appeal. This argument is specifically negatived by the learned Judge, Mr. Justice Banerji. He said: "It seems to me that Order 34, Rule 5 of the Civil P.C. contemplates the passing of only one final decree in a suit for sale upon a mortgage. The essential condition of the making of a final decree is the existence of a preliminary decree which has become conclusive between the parties. When an appeal has been preferred, it is the decree of the appellate Court which is the final decree in the cause." It is clear, therefore, that there can be only one final decree in a suit for sale and not more than one, and that this final decree can be passed only after the preliminary decree has been confirmed or varied by this Court in appeal. The learned Counsel for the respondent further argued that though the mortgagee may not have the right to apply for a final decree there was an inherent jurisdiction in the Court to grant such a decree even wrongly. According to him, therefore the final decree of the 19 of August 1922 is building between the parties and the mortgagee is entitled to execute it. The simple answer to it is that the mortgagee does not come merely on the basis of that decree as having been passed in his favour rightly or wrongly. He includes in his application for execution the costs awarded to him by the High Court as well, and it is clear that he has in contemplation the correct final decree which ought to be passed in the suit. Such a correct decree has not yet been passed so there can be no question of its execution.