ORDER
P.S. Narayana, J.
1. Heard the learned Counsel for the petitioner Sri Nataraja Sarma.
2. The revision is directed against an order dated 25-4-2001 in EP No. 74 of 2001 in OS No.303 of 1998 on the file of I Additional Senior Civil Judge, at Warangal.
3. The impugned order reads as follows:–
“Heard. Attach and notice of hypothecated properties as shown in the list filed by the Commissioner. Call on 14-6-2001.”
The learned Counsel had placed before me the judgment in OS No. 303 of 1998. The suit was filed by the State Bank of Hyderabad for realization of the suit amounts. The operative portion of the judgment clearly specifies that there was a preliminary decree accordingly time for redemption six months. On perusal of the record it is clear that EP No. 74 of 2000 was filed even prior to the passing of the final decree. It is also brought to my notice that IA No.335 of 2001 in OS No. 303 of 1998 on the file of I Additional Senior civil Judge, Warangal for passing final decree in the self same proceeding, is pending disposal.
4. It is needless to mention that in a suit based on mortgage there will be preliminary and final decree. Order 34 of the Code of Civil Procedure deals with suits relating to mortgages of immovable property. It is no doubt true that the impugned order reads as though the attachment is in relation to movable properties. It is pertinent to note that when a Judgment was already made passing a preliminary decree, especially when steps had been taken to that effect by filing an application IA No. 335 of 2001 for the passing of final decree in the self same proceeding, this execution petition as such is not maintainable unless all the other steps in the direction of obtaining final decree are completed. The learned Counsel had placed reliance on Md. Sultan and Ors. v. Firm of Rampratap Kannyalal, AIR 1964 AP 201, wherein the distinction relating to the pledge and mortgage of movables had been with. The learned Counsel also had drawn my attention to Mahamaya Debi v. Haridas Haldar, (1915) 42 Cal. 455 = 27 IC 400, wherein there was a mortgage of intangible property and a decree for foreclosure was passed and the learned Judges held that such a decree can be passed and executed. The learned Counsel also had placed strong reliance on Dwarampudi Basivireddi v. Gadi Kamarju and Ors., AIR 1933 Mad. 241, wherein it was held that a mortgage of movable property is valid and decree can be passed in enforcement of that mortgage and a mortgagee of movable property is entitled to a right of sale quite as much as a mortgagee of immovable property in execution of the decree. Sir D.F. Mulla in his Code of Civil Procedure says: “A mortgagee of chattels is entitled to foreclosure quite as much as a mortgagee of immovable property”. In the light of the views expressed in the above decisions, the learned Counsel Sri Nataraja Sarma had strenuously contended that the preliminary decree in OS No. 303 of 1998 cannot be said to be bad in law or even otherwise unless it is otherwise rectified in accordance with law the said judgment stands until a final decree is passed in the application filed by the respondent and till then the very filing of the Execution petition will be premature and is not sustainable in law.
5. I am in entire agreement with the contentions of the learned Counsel representing the revision petitioner Sri Nataraja Sarma. In the light of the above discussion and for the reasons recorded supra, I am of the considered opinion that the impugned order as such is illegal and unsustainable and is liable to be set aside. Accordingly, the impugned order dated 25-4-2001 in EP No. 74 of 2001 in OS No. 303 of 1998 on the file of I Additional senior Civil Judge, Warangal is hereby set aside.
6. The civil revision petition is accordingly allowed. No order as to costs.