Execution Petition cannot be entertained in a mortgage Suit on the basis of a preliminary Decree without obtaining a final Decree.

JUDGMENT :

1. This Civil Revision Petition is directed against the order, dtd. 9/5/2022, passed in E.P. No.25 of 2016 in O.S. No.14 of 2008 on the file of the learned Senior Civil Judge, Kothapeta, whereby the E.P. filed for execution of the preliminary Decree, dtd. 28/6/2010, was dismissed.

2. Heard learned counsel for the petitioner.

3. Factual matrix of the revision may be stated as follows:

The petitioner is the plaintiff in O.S. No.14 of 2008 on the file of the learned Senior Civil Judge, Kothapeta. He has filed the said suit against the respondent for recovery of money on the basis of a mortgage deed whereby the plaint schedule property was offered as security for the debt. The said Suit was decreed in the trial Court. Only a preliminary Decree was passed to that effect. But before filing a final Decree petition and before passing a final Decree as required under law, the petitioner has filed E.P. No.25 of 2016 to execute the said preliminary Decree to realize the due amount from the respondent.

4. The said E.P. No.25 of 2016 came to be dismissed by the impugned order on the ground that Execution Petition cannot be filed for execution of the preliminary Decree without passing a final Decree in a mortgage Suit.

5. Aggrieved thereby, the present revision is preferred by the petitioner.

6. Learned counsel for the petitioner has invoked Order XXXIV Rule 15(2) CPC and would contend that when a Decree orders payment of money and charges it on immovable property that on default of payment, the amount due may be realized by sale of that property in execution of the Decree. The said contention is absolutely devoid of any merit. For better appreciation of the said contention, Order XXXIV Rule 15 (1) and (2) CPC are extracted hereunder:

"15. Mortgages by the deposit of title deeds and charges. (1) All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of Sec. 58, and to a charge within the meaning of Sec. 100 of the Transfer of Property Act, 1882 (4 of 1882);

(2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree."

7. As can be seen from the aforesaid provision, clause (1) thereof ordains that all the provisions contained in the said order i.e., Order XXXIV which apply to a simple mortgage, shall also as far as may be applied to a mortgage by deposit of title deeds within the meaning of Sec. 58, and to a charge within the meaning of Sec. 100 of the Transfer of Property Act. Clause (2) thereof ordains that when a Decree orders payment of money and charges it on immovable property that on default of payment, the amount may be realized by sale of that property in execution of that decree.

8. Clause (2) of Order XXXIV Rule 15 CPC is not pertaining to a mortgage decree. It pertains to a Decree which was passed for payment of money and if a charge is created on immovable property in the Decree for realization of the said money, then the rule says that it can be realized by executing that decree. There is any amount of difference between Decree passed in a mortgage suit and a Decree passed in simple suit for recovery of money by creating a charge on the immovable property at the time of passing the Decree. In a simple Suit filed for recovery of money, when it was decreed and a charge is created on immovable property in a Decree, then there is no need or necessity as per law to pass any final Decree to execute the same. So, the said Decree can directly be executed. But a mortgage suit altogether stands on a different footing. When a suit is filed for recovery of money on the basis of a mortgage transaction, law requires to initially pass a preliminary Decree and then to pass a final Decree and it is only the final Decree that can be executed by way of filing an Execution Petition. But Execution Petition cannot be f