JUDGMENT
V.S. Aggarwal, J.
1. This is a revision petition filed by Gurdial Singh, the petitioner, directed against the order passed by the learned Civil judge (Senior Division), Karnal, dated March 26, 1998. By virtue of the impugned order, the learned court dismissed the objections filed by the petitioner.
2. The relevant facts are that the respondent Oriental Bank of Commerce had filed a civil suit against the petitioner Gurdial Singh. It has been asserted that a loan had been advanced to the petitioner with interest. The petitioner even had mortgaged the land measuring 95 Kanals 16 Marlas. The civil suit was decreed ex parte on February 11, 1985. The operative part of the judgment dated February 11, 1985, rendered by the learned Senior Sub-Judge, Karnal, reads as under :
“Thus, as a result of above discussion, the suit of the plaintiff succeeds and a decree for recovery of Rs. 84,054.55 with costs is passed in favour of the plaintiff and against the defendant. Future interest at the stipulated rate from the date of suit till realisation of the amount is also awarded to the plaintiff. Mortgage decree as prayed for is also passed in favour of the plaintiff in respect of the land described in para. No. 5 of the plaint and in case the defendant fails to repay the decretal amount within three months, final decree as per provisions of Order 34 of the Civil Procedure Code will be deemed, to have been passed in favour of the plaintiff.”
3. In terms of the said judgment, decree sheet has also been drawn and it is similarly worded. In execution of the above said decree, the petitioner had filed objections. It was asserted that the execution application is not maintainable because the same is being filed on the basis of a preliminary decree passed. No final decree as yet has been drawn. The mandatory provisions of Order 34, rule 5 of the Code of Civil Procedure (for short “the Code”) have not been complied with and, therefore, the decree is not executable. The objections were contested. The respondent-bank besides asserting that the present objections are barred by res judicata, took up the plea that the judgment and decree is being executed and the plea that it is not executable is without basis.
4. The learned Civil Judge (Senior Division), Karnal, vide the impugned order held that in terms of the judgment and decree, the same is executable. The objections as such were dismissed.
5. Aggrieved by the same, present revision petition has been filed.
6. On behalf of the petitioner, it has been asserted that it was only a pre-liminary decree that had been passed and since in terms of Order 34 of the Code, no final decree as yet has been passed, therefore, the judgment and decree was not executable. He relies upon the provisions of Order 34 of the Code in this regard. Under Order 34 of the Code, procedure has been prescribed with respect to the suits relating to mortgages of immovable property. Under Order 34, rule 1 of the Code, all persons having an interest shall be joined as parties to such suit based on mortgage of the property. Order 34, rule 2 of the Code prescribes that in a suit for foreclosure, a preliminary decree shall be passed. It shall indicate as to what is the principal amount and interest due besides costs. Amongst other things, it shall indicate that the defendant pays into court the amount so found or declared due on or before such date as the court may fix within six months, otherwise a corresponding right accrues to the decree holder to apply for passing of a final decree. Order 34, rules 3, 4 and 5 prescribe the procedure in this regard.
7. Admittedly, in the present case, final decree as yet has not been drawn. Learned counsel for the petitioner relies upon the decision from the Bombay High Court in the case of Vishwasrao v. Ushabai, AIR 1988 Bom 392. In the said case, the civil suit was for partition and separate possession by the son of his share in the family property. A preliminary decree had been passed. A Commissioner had been appointed for effecting partition. While the proceedings were pending, an application was filed for execution. It was held that unless a final decree is passed, the order was not executable. This is not the position herein. In the present case, the nature of the judgment and the decree already referred to above shows that no further order from the court was required before seeking execution. It was a composite decree that had been passed.
8. Reference in this connection can well be made to the judgment of this court in the case of Sadhu Ram v. State Bank of India [1994] Important and Selected judgments (Banking) 434. In the cited case also, it was urged that the provisions of Order 34, rule 5 of the Code have not been complied with. Therein, the trial court had passed the judgment and decree that if within six months payment is not made, the property would be sold. It was held that it was a composite decree that has been passed and in paragraph 7 of the judgment the following findings have been arrived at :
“As already noticed, in the decree, the trial court instead of directing that on failure of the defendant to pay the amount within the period given by the court, the plaintiff would be entitled to apply for final decree, directed that the defendants are given a period of six months to pay the decretal amount failing which their property standing mortgaged with the plaintiff will be sold for realisation of the decretal amount. If the sale proceeds fell short of decretal amount the same can be recovered from the assets of the defendants’. Direction for sale of property which was required to be given on a formal application to be made by the plaintiff, the court while passing the decree, gave these very directions and, therefore, it was not necessary for the plaintiff to apply afresh for drawing up of a final decree. The decree passed in the suit was a composite one. The decree directed that the property be sold and the money so realised be applied for payment to the plaintiff. The intention of the court passing the decree was not left in doubt even though the precise language used by the Code was not employed. The judgment relied upon by counsel for the petitioner at the time of motion hearing, has no application to the facts of the present case inasmuch as in that case only a preliminary decree had been passed and at the time of preliminary decree, the court had not directed that in the case of default of payment within the period prescribed under the decree, the property would be put to sale for realisation of the amount. It was in these circumstances that the decree was a preliminary one and the plaintiff was required in terms of Order 34 of the Code to apply for drawing up of a final decree.”
9. The same view was expressed by the Bombay High Court in the case of Vinaeca Sinai Manerkar v. Bank of India [1996] 2 Civil Court Cases 262. A clear distinction was drawn where a judgment and decree was without jurisdiction or not. It was held that where the decree was drawn in breach of provisions of section 34 of the Code but the court had the jurisdiction to pass the judgment and decree, it is not a nullity. In paragraph 7 of the judgment, it was held as under :
“In the instant case there is no dispute that the court which passed the decree which is sought to be executed is a court of competent jurisdiction to adjudicate the claim of the respondents. The fact of the court having erroneously exercised its jurisdiction does not mean that the order passed by the court is vitiated by lack of inherent jurisdiction. It is seen that the said order was challenged by the petitioner in appeal without any success and being of it is obvious that the order has become final since the petitioner had exhausted the only remedy available to him under the law.
This being the position, it is obvious that the ground of nullity for lack of inherent jurisdiction of the court to pass such an order does not appear to be available for the petitioner.”
10. The Kerala High Court in the case of Mosa Rajayyan v. Jacob Haris, AIR 1981 Ker 135, was concerned with somewhat similar situation. Therein, a final decree had been passed without the preliminary decree having been passed. The court concluded that it was not a nullity and it was an executable judgment and decree. The findings recorded in paragraph 3 of the judgment are as under (page 136) :
“It cannot, therefore, be contended that for the simple reason that a (final) decree, without a preliminary decree preceding it, has been passed, the decree is null and void. Even otherwise, once the decree is allowed to become final, without being appealed against, any irregularity, even illegality, unless it be a case of total lack of jurisdiction, would not render the decree null and void or incapable of being executed. The executing court is bound to allow the execution of the decree without going behind it.”
11. Identical are the facts herein. The operative part of the judgment has already been reproduced above. It indicates that it was a final judgment that had been passed. In the case of nonpayment, the order for execution can be asked for. It is not a case where the judgment and decree on the face of it can be termed to be without jurisdiction. If strict provisions of the Code are not followed, it will not make the judgment and decree a nullity and unexecutable. It was never challenged, at the appropriate time. Therefore, the objections were rightly rejected.
12. For these reasons, it must follow that there is no ground to interfere in the impugned order. The revision petition must fail and is accordingly dismissed.