A court cannot pass a final decree for delivery of possession of the mortgaged property in a suit seeking sale of the mortgaged property. Such a decree is without jurisdiction and can be set aside under Article 227 of the Constitution of India.

J. ESWARA PRASAD, J.

( 1 ) IN this revision, hied under article 227 of the Constitution of India, the petitioner prays to set aside the final decree dated 9-3-83 in OS No. 117/77 on the file of the District Munandif s Court at zaheerabad.

( 2 ) THE petitioner is the defendant in the suit, filed by the respondent for recovery of a sum of Rs. 6,500/- based on a usufructory mortgage dated 10-11-76. A preliminary decree for Rs 4,000/- with interest at 6% p a from 9-9-77 was passed by the Court, The decree directed that the respondent is entitled to apply for a final decree for sale of the mortgaged lands. On the petitioner having failed to pay the decretal amount, the respondent made an application in I A No. 441/80 to put him in possession of the mortgaged lands. The court, accordingly, passed a final decree on 29-3-83, purporting to be one under sub-rule (2) of-Rule 3 of Order 34 of Civil procedure Code, directing that the respondent be put in possession of the mortgaged property The respondent filed E. P. No. 15/87 on 29-6-86 and a warrant for execution was issued on 6-2-90. The petitioner filed the present revision on 13-3-90 and obtained stay of execution on condition of his depositing the entire decretal amount the petitioner has complied with the said order But it wag too late, for possession was already delivered to the respondent on 8-2-90.

( 3 ) SRI Kannabhiran, learned Counsel appearing tor the petitioner assails the entire proceeding, conicnding that the game ars vitiated by manifest errors leading to grave injustice, that the proceedings were in abuse of t le process ot the Court, and ti. at the final decree was made without jnrisdiction and consequently the same is unfair and unjust He also contended that the respondent sought only for the sale of the mortgaged lands, that m fact, the preliminary decree reads that the respondent was ntitled only for a final decree for sale of the lands, that the Court has no jurisdiction to grant a decree for possession of the unds of an extent of Ac. 8-39 gantas which are worth over Rs. 1,50,000/- that the delivery of possession of the lands under such circumstances for the satisfaction ot a decree amounting to Rs 8,000/- is manifestly unjust and unfair He further contended that the respondent has designedly worded the prayer in IA No. 441/80 seeking delivery of possession of the lands, being fully conscious of the fact that he was only entitled for sale of the lands as per the preliminary decree and that the court, without perusal of the preliminary decree, simply granted the relief which was never sought for and which did not form a part of tht preliminary decree He went on contending that the respondent purpoitly delayed the filing of the execution proceedings till 29-6-86, though the final decree was passed on 29-3-83, in order to lull the petitioner into complecency for the time being and later, to spring a surprise on the petitioner by obtaining possession of very valuable lands in discharge of a decree passed for a paltry sum The learned Counsel further submitted that rule 4 of Order 31 alone is applicable to the case on hand that the Court has power only to order sale of so much of the property as would be sulficient to discharge the decree debt, that it has no power to order delivery of possession ol the property under sub rule 3, which could be invoked only in a. suit instituted for foreclosure of the mortgaged property and therefore, the decree passed was without jurisdiction and perverse

( 4 ) THE learned Counsel relied on a. R. Antulay Vs R S Nayak (1) AIR 1988 SC 1531 and Trimbak Vs Ram chandra (2) 1977 SC 1222 and contended that no mafi should suffer for the mistake committed by the Court He contended that in the absence of any other remedy to right the wrong, the petitioner could seek relief under Article 227 of the Constitution of India For this proposition he referred to the decisions of this court reported in venkata Narasayamma Vs. Venkata Rattamma (3) 1955 (1)

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