JUDGMENT
Mansoor Ahmad Mir, J.
1. By the medium of this revision petition, the petitioner has challenged the order dated 11th June, 1999 passed by learned Additional District Judge (Bank Cases), Srinagar in the case titled as Jammu & Kashmir Bank v. Abdul Khaliq Nath and Ors. filed No. 396, on the grounds taken in the memo of petition.
2. In order to return finding, the facts of the case are to be noticed. The plaintiff/respondent No. 1 filed a suit for recovery against M/S Abdul Khaliq Nath, Abdul Rehman Nath and Abdul Khaliq Nath on 7th June, 1993 in this Court. It is averred in the plaint that defendant No. 1, namely, M/S Abdul Khaliq Nath (borrower) approached the plaintiff bank in the year 1981 for grant of financial accommodation through its proprietor i.e. defendant No. 2, namely, Abdul Rehman Nath, petitioner herein.
3. The plaintiff bank sanctioned a cash credit facility to the tune of Rs. 50,000/- in favour of the borrower i.e. defendant No. 1 and the same was availed by the borrower after execution of documents. The defendant No. 3 mortgaged his two storeyed house with land underneath and appurtenant thereto standing in the name of defendant No. 3 situated at Magarmal Bagh, Srinagar in favour of the plaintiff as collateral security vide collateral security deed dated 17th April, 1981 and registered on 20th April, 1981. The defendant 3 also executed an irrevocable power of attorney on 17th of April, 1981 and also an affidavit on the same date. In terms of the irrevocable power of attorney, the defendant No. 3 appointed the plaintiff as attorney of defendant No. 3 authorizing the plaintiff to sell the entire or part of the mortgaged property and to deposit the sale proceeds towards the adjustment of loan account of the borrower, in case borrower fails to liquidate the loan amount. The cash credit facility was enhanced to the tune of Rs. 85,000/- in favour of the borrower at the request of defendant No. 2 being sole proprietor. The borrower executed documents referred in para-7 of the plaint and defendant No. 3 also executed the documents. The plaintiff has prayed for passing of a decree for an amount of Rs. 3,81,280/- in favour of the plaintiff bank against the defendants and, passing of a preliminary decree for sale of mortgaged properties and, awarding costs and any other relief which the court may deem fit.
4. The defendants 1 and 2 appeared and filed written statement. The defendants 1 and 2 raised a plea that defendant No. 3 is dead, thus the suit is not maintainable having been filed against a dead person.
5. It appears that the plaintiff filed an application before the trial court for substitution of the legal heirs of Abdul Khaliq Nath. The defendants 1 and 2 i.e., petitioner and respondent No. 2 in the present revision petition resisted the said application on the ground that Abdul Khaliq Nath, defendant No. 3 was dead before filing of the suit and thus legal representatives of the said defendant cannot be brought on record. The said application stands dismissed by the trial court vide order dated 19th Feb., 1999. It is apt to reproduce relevant portion of the said order herein;-
…The application moved by the plaintiff for brining on record the legal representatives of defendant No. 3 is accordingly dismissed. However, defendant No. 2 son of defendant No. 3 is already on record as defendant in the case. Finding regarding the maintainability of the case can be given after an issue is struck in this connection. The case shall come up for further proceedings on 15.03.99.
6. On 19th March, 1999 the following only one preliminary issue stands framed;-
Whether the suit in the present form is not maintainable?
7. The trial court vide order dated 12th June, 1999 held that the suit is maintainable. The petitioners feeling aggrieved of the said order have presented this revision petition, assailing the said order which shall be hereinafter referred as impugned order.
8. Heard. Mr. Qayoom argued that the frame of suit is such that relief has been prayed for only against defendant No. 3 so the suit should have been dismissed having been filed against a dead person. The application for substitution stands dismissed and the said order has attained finality. The impugned order is erroneous, illegal and bad in law.
9. Mr. Dendroo while rebutting the arguments argued that the suit for recovery of amount is against defendants 1 and 2, defendant No. 1 being the borrower and defendant No. 2 being the sole proprietor of defendant No. 1. The suit is not only against defendant No. 3. The defendant No. 3 has mortgaged his property by way of collateral security, which is just to safeguard the interests of the plaintiff. That in case the borrower fails to liquidate the amount then in that event the plaintiff can recover the same in terms of collateral security deed. He further argued that the suit is not a nullity because already defendant 2 is figuring as defendant No. 2 who is one of the legal heirs of defendant No. 3. The order passed by the Additional District Judge (Bank Cases) is legal one and has been rightly passed.
10. Considered. Keeping in view the facts discussed, hereinabove, the suit is for recovery of loan amount which stands sanctioned and availed by the defendants 1 and 2, defendant No. 1 as a borrower and defendant No. 2 as a sole proprietor. The defendant No. 3 has executed collateral security and thereby has mortgaged his property which is just to safeguard the interests of the plaintiff. In case the borrower fails or is not in a position to liquidate the amount then in that eventuality the amount can be recovered by selling the mortgaged property.
11. The suit is for recovery of amount from defendants 1 and 2 so it cannot be held at this stage that suit is not maintainable. If suit will be thrown out at this stage on the ground that defendant No. 3 is dead, this will amount to dismissing the suit for recovery of loan amount. The court has to take notice of a very important fact that defendant No. 2 i.e. sole proprietor of defendant No. 1 borrower, is one of the legal heir of defendant No. 3. Thus defendant No. 2 already figures as defendant in the suit, though not in the capacity of legal heir of defendant No. 3. It is proper to refrain from making comments that what will be the legal consequences because that will be thrashed out at an appropriate stage and it is also a moot question that in case the defendants 1 and 2 fail to satisfy the decreetal amount whether the decree can be satisfied by selling the mortgaged property in terms of collateral security deed and irrevocable power of attorney.
12. Having glance of the aforesaid discussion and keeping in view the contents of the plaint, the suit is not only against the defendant No. 3 but it is also against the defendants 1 and 2. Thus the trial court has passed a speaking order, needs no interference.
13. Before parting, I deem it proper to place on record that framing of one preliminary issue is not warranted by the procedure. In terms of Order 14 CPC, all issues are to be framed and only those issues are to be treated as preliminary issues in terms of which the suit can be decided this way or that way without leading evidence. The trial courts must frame all issues and then must treat those issues as preliminary issues which are purely legal in nature and can be decided only on the point of law without going into evidence. Framing of only preliminary issue(s) should be avoided.
14. Having glance of the aforesaid discussion, the revision petition fails and is accordingly dismissed.