Rajeev Ranjan Prasad, J.

Some fine points of the civil laws, as contained in the Code of Civil Procedure, have come up for consideration in the present Letters Patent Appeal.

2. Central Bank of India, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (hereinafter referred to as ‘the Bank’) has preferred the present appeal questioning the judgment dated 11.12.2013 passed by a learned Single Judge of this Court in CWJC No. 1665/2009. The learned Single Judge has allowed the Writ Application and thereby accepted the prayer of the petitioners to quash the order dated 31.08.2009 passed by the Presiding Officer, Debts Recovery Tribunal, Patna in M.A. No. 07/2009 as also the order dated 19.04.2007 passed in OA (Ex.) Case No. 15/2006 and the resultant certificate issued by the Debts Recovery Tribunal, Patna in the said execution case for realization of a sum of Rs. 18,99,760.69 being the total of (i) decreed amount of Rs. 1,49,628.89 plus (ii) interest @ 14% per annum with quarterly rests from 01.02.1998 to 31.12.2005 amounting to Rs.17,27,177.80 plus (iii) amount of cost awarded with subsequently incurred Rs. 22,954.00 with further interest @ 14% per annum with quarterly rests from 01.01.2006 till its realization against the respondents – judgment debtors from their person and properties.

BRIEF FACTS OF THE CASE

3. It is an admitted fact that on 07.06.1983 Danapur Branch of the Bank sanctioned a Cash Credit Loan Limit of Rs.70,000/- in favour of M/s Kailash Art International (respondent no. 1), who happened to be a sole proprietorship firm owned by one Saryug Prasad Singh (respondent no. 2). Father of the respondent no. 2 (since deceased) and Smt. Savitri Devi (respondent no. 3) stood guarantors to the said financial assistance provided by the Bank. Default in repayment led to filing of a Title Mortgage Suit bearing no. 572/1987 in the court of learned Subordinate Judge-III, Danapur claiming Rs.1,49,628.89 with interest and cost. The defendants in the suit appeared but did not contest the same leading to passing of an ex parte judgment and decree dated 21.04.1995 by the learned court.

4. The Bank filed an Execution Case bearing no. 05/1996 in the court of learned Subordinate Judge-III, Danapur on the basis of the said decree claiming an amount of Rs. 5,40,634/- after including interest and adding the same in the principal. The stand of the judgment debtors – respondents is that the said decree is in the nature of a preliminary mortgage decree and, in view of settled law that a preliminary mortgage decree cannot be executed, they filed an application under Sections 47 and 151 of the Code of Civil Procedure giving rise to Misc. Case No. 9/1996 challenging the maintainability of the execution case. The stand of the judgment debtors – respondents were contested by the Bank by filing an objection in which a stand was taken on behalf of the Bank that the execution case was filed after preparation of the decree which is a composite decree for realization of the dues and also for sale of the mortgaged properties for realization of the dues. It was also the stand of the Bank that they were not required to await for anything more than the decree in hand and thus the execution case, according to the decree-holder Bank, was maintainable and operative.

5. In the latter part of this judgment, we will deal with the nature of the judgment and decree dated 21.04.1995 passed in Title Mortgage Suit No.572/1986 because it is the said decree which need to be construed and has been construed by the learned single Judge holding that it is a preliminary mortgage decree but not properly worded by the learned Subordinate Judge III, Danapur.

6. The Execution Case No. 5/1996 pending before the learned Subordinate Judge III, Danapur got dismissed in default on 17.04.2004. During pendency of the