Execution of a preliminary decree without obtaining a final decree is not permissible as per the legislative intent reflected in Order 34, Rule 3 of the Code of Civil Procedure.

Piyush Mathur, J.

1. The Judgment Debtor (Guarantor) has questioned the legality and propriety of an Order passed by IVth Additional District Judge, Morena on Date 13-4-2006, in Execution Case No. 2-A/2000 x 2004 whereby an Application preferred under section 151 of the Code of Civil Procedure, by the Borrower/Guarantor for treating the entire execution proceedings to be premature, has been dismissed.

2. One Dilip Singh Parmar has taken financial assistance from Union Bank of India for making Furniture of his Restaurant, situated at Morena, in the sum of Rupees Three Lacs and the present petitioner (defendant No. 2) had furnished an equitable mortgage of House No. 117/1 for securing the financial assistance/loan with the Bank on Date 22-7-1972. The Bank has advanced the financial assistance of Rs. 1,20.000/ -, Rs. 1,13,200/ - and Rs. 72,490/ - in the Year 1996 on different dates and the Borrower had admitted the liability of making payment to the Bank of the entire due amount of Rs. 3,11,903/ - and a Letter of Confirmation was executed on Date 26-3-1997, but when in spite of demand of return of this amount, the same was not paid, the Bank had issued a notice and a Suit for the recovery of Rs. 4,57,543/ - was filed.

3. The trial Court issued notice to the Borrower and Guarantor and after service of summons, the defendants entered their appearance before the trial Court, but at the subsequent stage of hearing of Suit, the defendants remained absent, compelling the Court to proceed ex-parte against the defendants (Borrower and Guarantor) and to pass a Preliminary Decree on Date 18-12-2001, in Civil Suit No. 2-A/2000. The 4th Additional District Judge, Morena, while deciding the Suit ex-parte, had drawn a Preliminary Decree in the following manner:

4. Soon after passing of the Preliminary Decree, the Bank had initiated execution proceedings by submitting Execution Application in terms of Order 21, Rule 11, Civil Procedure Code and sought assistance of the Court for executing the Preliminary Decree, where the Court issued notice to the present petitioner, who in turn, filed an Application under section 151 of Civil Procedure Code by taking a Preliminary Objection that the Preliminary Decree was passed with certain Conditions directing the Borrower and Guarantor to deposit the specified amounts within a period of 6 months, along with a direction that in the event of non-compliance of the direction given for depositing the money, the Bank would be entitled to secure its due amount, by putting the Mortgaged Property to auction and since the petitioners could not comply with the same, the Bank was required to first obtain the Final Decree in terms of Order 34, Rule 3 of Civil Procedure Code and in absence of a Final Decree, the Execution Application, preferred under Order 21, Rule 11 of Civil Procedure Code for straightaway executing the Preliminary Decree would be premature and not tenable in the eyes of law. The Executing Court has dismissed this Application of the petitioner, and its legality has been questioned in the present Revision.

5. I have heard Shri R. K. Goyal, learned Counsel for the petitioner, Shri M. M. Qureshi, learned Counsel for the respondent No. 1 and Shri Ajay Bhargava, learned Counsel for the respondent No. 2 and perused the Order filed along with the Revision Memo.

6. Shri R. K. Goyal, learned Counsel of the petitioner submits that since the Decree itself had prescribed for a particular procedure of obtaining a Final Decree, in the event of non-compliance of the time frame set out in the Preliminary Decree, as per the provisions contained in Rule 2 of Order 34, Civil Procedure Code, therefore the Bank was not competent to secure execution of the Preliminary Decree without obtaining the Final Decree. Shri M. M. Qureshi, learned Counsel for the respondent No. 1-Bank submits that since the period of an Appeal had expired, therefore, the Preliminary Decree had acquired the status of a Final Decree and the same was pu