The main legal point established in the judgment is the interpretation of Order 34 Rule 5 of the Code of Civil Procedure, which determined the maintainability of an application under Order 21 Rule 34 by the mortgagor seeking execution of discharge documents.

JUDGMENT :

(Prayer: Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure, to set aside the Order dated 16.08.2017 passed in E.P.No.96 of 2017 in O.S.No.1038 of 2004 on the file of the Principal District Munsif, Cuddalore District allowing the petition in E.P.No.96 of 2017 in O.S.No.1038 of 2004 by allowing this Civil Revision Petition.)

This matter is taken up for hearing through Video-Conferencing.

1. The Civil Revision Petition is filed by the plaintiff in O.S.No.1038 of 2004, challenging an order made by the Executing Court in E.P.No.96 of 2017, directing the petitioner herein to execute a document of discharge of the mortgage as per the final decree passed in I.A.No.657 of 2015 in O.S.No.1038 of 2004.

2. The petitioner herein as plaintiff filed a suit for sale on the strength of an assigned mortgage. The original mortgage was dated 26.11.1990 executed by the respondent herein in favour of one Padaleeswaran. The petitioner herein got the mortgage assigned in his favour on 25.09.2002 under a registered instrument and sued upon the same. The said suit came to be decreed after contest on 09.10.2014. The defendant paid up the mortgage money and filed an application in I.A.No.657 of 2015 seeking a final decree in terms of Order 34 Rule 5 of the Code of Civil Procedure Code. The said application came to allowed on 02.08.2016. The Trial Court recorded the finding that the entire amount due under the mortgage has been paid while passing a final decree in I.A.No.657 of 2015. Thereafter, the respondent filed an execution petition in E.P.No.96 of 2017, under Order 21 Rule 34, seeking execution of a discharge receipt as per the final decree and for registration of the same.

3. This was resisted by the petitioner herein contending that an application under Order 21 Rule 34 is incompetent at the instance of the defendant in a suit. It was contended that only the decree holder, namely, the plaintiff can invoke the said provision. It was the further contention of the petitioner herein, that the very application under Order 34 Rule 3 is incompetent and the Order dated 02.08.2016 is not a final order or a final decree, as the same was passed suo-moto by the Court. It was also stated that I.A.No.413 of 2017 filed by the petitioner herein seeking to set aside the said Order dated 02.08.2016 made in I.A.No.657 of 2015 was pending.

4. The Executing Court which heard the application concluded that the petition under Order 21 Rule 34 is very much maintainable, in as much as, the respondent herein, namely, the defendant in the suit would be a decree holder, as far as an application under Order 21 Rule 34 is concerned, since the final decree passed in I.A.No.657 of 2015, directed the petitioner herein to execute documents evidencing discharge of the mortgage. On the said finding, the learned Trial Judge allowed the application, directing execution of documents by the petitioner. The learned Trial Judge also recorded that the application to set aside the order in I.A.No.657 of 2015, namely, I.A.No.413 of 2017 was also dismissed on 16.08.2017, the day on which, the Execution Petition came to be allowed.

5. I have heard Mr.R.Muralidharan, learned counsel appearing for the petitioner and Mr.V.Balamurugane, learned counsel appearing for the respondent.

6. Mr.R.Muralidharan, learned counsel appearing for the petitioner would contend that the order in I.A.No.657 of 2015 is not a final order and therefore, the same cannot be put in execution. He would also add that under Order 21 Rule 34, it is only the decree holder, who can file an application for execution and not the Judgment Debtor in a mortgage suit. It is his further contention that the amount directed to be paid under the preliminary decree was not paid fully and there remains some balance. Therefore, the Executing Court was not justified in allowing the Execution Petition. Another contention is also raised by the learned counsel to the effect that the prayer in the execution pe