AR. LAKSHMANAN, C. J.

( 1 ) IN this matter, P. S. Narayana, J. , was considering the question regarding the Maintainability of Execution Petition on the ground that the decree holder had already filed a petition for passing of final decree and the said application was dismissed on the ground of limitation and, therefore, the decree holder was not entitled to ignore the same and file the execution petition. The learned Judge noticed a Division Bench judgment of this Court in Venugopala Swamy and Anjaneya Swamy Temples, Represented by its Executive Officer v. Vucha Narayana and Ors. , 1988 (2) APLJ 40, wherein it was observed that Order 34 Sub-clause (2) of Rule 15 of Code of Civil Procedure (CPC, for brevity) authorises the decree holder to execute the decree in default of payment of the amount by bringing the charged properties for sale in execution of the very decree under which the charge was created and there is no need to obtain a separate final decree in order to enforce this charge on the properties. The learned Judge also noticed another judgment of this Court in Tiruvengalam v. Ammanna, AIR 1967 AP 206, wherein it was held that though a decree declares a charge on the property is not one made under Order 34, Rules 14 and 15 CPC. The learned Judge observed that in the light of the facts and circumstances of the case and also in the light of the general importance involved in the matter, he was inclined to refer the following two questions to be decided by a Division Bench of Supreme Court and directed the Registry to place the papers before the Hon ble the Chief Justice for obtaining appropriate orders in this regard. That is how the matter has been placed before this Bench. The questions to be decided are as follows:1. Whether in view of Order 34 Rule 15 (2) of CPC, the preliminary decree can be put into execution though the preliminary decree itself contemplates the obtaining of a final decree in pursuance of the preliminary decree. 2. Whether a party who was unsuccessful in an application for passing of final decree, can circumvent the proceedings by invoking the jurisdiction of the Court to execute the preliminary decree ignoring such orders which became final.

( 2 ) THE short facts are as follows: The State Bank of India, Kavali Branch has filed a suit against the petitioners herein for recovery of Rs. 41,673-50 ps. , being the principal and interest amount due on term loans and crop loans borrowed by one Sri Devabathina Paradesaiah (1st respondent) from the bank by executing hypothecation agreement for crops in the plaint schedule land and payable with interest being 1. 5% per annum on the State Bank of India advance rate with a minimum of 15% per annum. A preliminary decree was passed on 7. 12. 1989 in the following terms: (I) That the defendants 2 to 4 do pay in to Court on or before the seventh day of June, 1990 or any later date upto which time for payment may be extended by the Court, the said amount of Rs. 49,232. 00with future interest at 6% per annum on Rs. 24,500. 00 till realisation. (II) That, on such payment and on payment thereafter before such date as the Court may fix, of such amount as the Court may adjudge due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the plaintiff will bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned, and all such documents shall be delivered over to the defendants 2 to 4 or to such person as they appoint, and the plaintiff shall, if so, required, re-convey or retransfer the said property free from the said mortgage and clear of, and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendants 2 to

Click Here to Read the rest of this document