M.S. Ramachandra Rao, J. - Heard Sri V.L.N.G.K.Murthy and Ms. Sindoora V.N.L., learned Counsel for the petitioner and Sri K.Sairama Murthy, learned counsel for the respondent No.1. The 2nd respondent appears to have expired but his presence is not necessary to decide the Revision Petition.

The Brief Facts:

2. This Revision Petition is filed under Section 115 CPC challenging the order dated 10-08-2-010 in E.P.No.21 of 2008 in O.S.No.12 of 1999 of the Senior Civil Judge, Nuzvid.

3. The petitioner herein is Judgment Debtor No.1.

4. The above suit had been filed by 1st respondent Bank against him and the 2nd respondent for recovery of a sum of Rs.95,092-78 ps being the principal and interest due on a mortgage bond dated 18-07-1986 executed by then in its favour for Rs.72,450/- payable with interest @ 16.5% per annum with half yearly rests with penal interest at 2% and costs.

5. Preliminary decree in the said suit was passed on 16-12-1994 by the Subordinate Judge, Nuzvid.

6. The preliminary decree declared that the amount due to the bank on the mortgage mentioned in the plaint calculated up to 16-02-1995 (the date of redemption) is a sum of Rs.72,450/- towards principal and Rs.74,806.78 ps towards interest apart from costs of Rs.8857/-, totalling Rs.1,56,113.78 ps. It ordered the petitioner to pay it into Court on or before 16-02-1995 or any later date up to which the time for payment may be extended by the Court, the above sum with interest at 12% per annum on the balance principal amount of Rs,72,450/- from 16-02-1995 (the date of redemption) till date of payment. It further directed that in default of the payment as aforesaid, the 1st respondent bank may apply to the Court for a final decree and for the sale of the mortgaged property; on such application, the mortgaged property or a sufficient part thereof shall be directed to be sold; and for the purposes of such sale, the 1st respondent shall produce before the Court or such officer as it appoints, all documents in its possession or power relating to the mortgaged property. We are not concerned with the other clauses in the decree.

7. Thereafter the 1st respondent filed I.A.No.157 of 1999 for passing of final decree in terms of the preliminary decree dated 16-12-1994 but the same was dismissed on 14-08-2003.

8. Notwithstanding the same the 1st respondent filed E.P.No.21 of 2008 under Order 21 Rule 22, 64, 66 and 82 CPC for recovery of the E.P. amount of Rs.2,54,770.78 ps on the ground that the petitioner and the 2nd respondent, who are judgment debtors, had not discharged the decretal amount.

9. Counter affidavit was filed by the petitioner contending that the preliminary decree in the above suit, which was a suit on the basis of a mortgage, is not executable and that it is only the final decree which is executable. The petitioner pointed out that the 1st respondent had suppressed the fact that I.A.No.157 of 1999 filed by it for passing of final decree had been dismissed on 14-08-2003 and that the said order operates as res judicata and bars the E.P. He contended that as per clause 7 of the preliminary decree dated 16-12-1994, the 1st respondent had to obtain final decree for sale of the mortgaged properties and since no final decree was passed in the case, the preliminary decree cannot be executed and the mortgaged property cannot be brought to sale. He also contended that the 1st respondent is not entitled to seek attachment of the movable properties or arrest and detention of the petitioner in civil prison, in the absence of a personal decree against the petitioner. It was also lastly contended that as per a recent Agricultural Debt Relief Scheme announced by the Government of India, the entire decree debt must be deemed to have been waived and the petitioner is not liable to pay any amount to the 1st respondent bank.

The Order of The Executing Court

10. By order dated 10-08-2010, the Court below rejected the objections raised by the petitioner and allowed the E.P. It held that