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IN THE HIGH COURT OF ALLAHABAD
PRAKASH KRISHNA
GHULAM ASHRAF - Appellant
Versus
ABDUL KHALIK - Respondents
C. M. W. P. 7707 Of 2000
Decided On : 01/20/2006
Preliminary Decree - Redemption of Mortgage - Order 34 Rule 7(1)(ii) - The judgment debtor contended that the decree in question being a preliminary decree is not executable. The court analyzed the nature of the decree, referred to relevant provisions, and held that the decree passed by the trial court is in the nature of a final decree as it finally determines the rights of the parties. The court cited precedents to support its decision and dismissed the writ petition, directing the executing court to proceed with the execution of the decree.
Fact of the Case:
The petitioner, a judgment debtor, contested the execution of a decree for redemption of a mortgaged property, arguing that the decree was preliminary and not executable. The court analyzed the nature of the decree and the obligations of the parties under it.
Finding of the Court:
The court found that the decree passed by the trial court was in the nature of a final decree as it finally determined the rights of the parties. The court rejected the judgment debtor's technical objection and dismissed the writ petition, directing the executing court to proceed with the execution of the decree.
Issues: The main issue was whether the decree for redemption of a mortgaged property was preliminary or final in nature, and thus, whether it was executable.
Ratio Decidendi: The court's decision was based on the analysis of the decree, relevant provisions of Order 34 Rule 7(1)(ii), and precedents that established the criteria for determining the nature of a decree in a suit for redemption of mortgage.
Final Decision: The writ petition lacked merit and was dismissed with a direction to the executing court to proceed with the execution of the decree. No costs were awarded to either party.
( 2 ) THE facts in brief are as follows: rahim Bux, father of respondent, the father of respondent no. 1 mortgaged his property in favour of Sri Sidhu Noor Bux Son of sri Makdhoom Bux by way of usufructory mortgage on 17-6-1924 of Rs. 250/-The respondent no. 1 (herein after called as decree holder) filed a suit being Suit No. 530 of 1980 against the petitioner (herein after called as judgment debtor) and others for redemption of the mortgaged property executed by rahim Bux, the mortgage deed dated 17-6-1924. The suit after contest was decreed on 23-11-1995 by the trial court with the condition that the decree holder is entitled to get possession over the mortgaged property on deposit of Rs. 250/- in the Court. The said decree has been confirmed in civil Appeal No. 54 of 1996 by the appellate court on 12-12-1996. The petitioner filed Second appeal being Second appeal no. 3467 of 1997 before this Court which was admitted on 8-4-1997 and is still pending consideration. On the stay application the Court has passed the following order:"issue notice. The execution can proceed for one half of the property mentioned in Paper 145 Ka (Mortgage dated 30-6-1924) executed by mst. Matoolan. "it appears that this Court passed the above order on the plea raised by the petitioner who is appellant in above second appeal that subsequently on 30-6-1924 Mst. Batoolan urf Maulukhan W/o Hafij Abdul gafoor had also mortgaged her Property by way of registered mortgage deed for Rs. 150/described in the mortgage deed. The said mortgage is not the subject matter of the suit. The execution of the mortgage by Mst. Batoolan is being disputed by the decree holder (respondent no. 1)
( 3 ) IN view of the partial stay order granted by this Court in the aforesaid Second appeal there was no hindrance in the execution of the decree for the remaining property. The decree holder put the decree for execution in respect of the property not covered by the aforesaid interim order passed by this Court. The executing Court on the application dated 17-11-1998 of the decree holder, appointed a Court Amin to prepare a map and submit report separating northern and southern portion of the house in dispute. According to the judgment debtor (petitioner) half of the southern portion of the house in dispute was mortgaged by Smt. Batoolan in respect thereof said stay order is operative. The Court Amin submitted a map and report dated 20-2-1999 excluding the portion covered by Paper no. 145- Ka (mortgage deed) dated 30-6-1924 ). The map and the report prepared by the Court Amin has been annexed along with the counter affidavit as Annexure-3 and 4 thereof. One of the objections raised by the judgment debtor under Section 47 C. P. C. which was pressed before this Court is, that the decree in question being preliminary decree is not liable to be executed unless and until a final decree is drawn. The said objection has been rejected by both the Court below, against which present writ petition has been filed
( 4 ) HEARD Sri. S. U. Ansari, Advocate, learned counsel for the petitioner and Sri s. A. Ansari, Advocate, learned counsel for the decreed holder. The parties have axchanged counter and rejoinder affidavits and therefore writ petition was heard finally with their consent at the admission state as provided under Chapter 22 Rule 3 of the Rule of the Court, it is being disposed of.
( 5 ) THE only question which was pressed by the learned counsel for the petitioner is that the decree in question being preliminary decree, is not executable. No other point was pressed by him.
( 6 ) A copy of the decree has been filed as annexure-1 to the Counter affidavit, it directs the plaintiff to pay a sum of Rs. 250/ to the defendant within a period of four months. Thereafter the defendants have been directed to deliver the possession of the hou
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