IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Revision No. 5803 of 2008
Date of Decision : November 20, 2008
Hans Raj
....Petitioner
Versus
Boor Singh and others
.....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Surinder Garg, Advocate
for the petitioner.
Mr. Dilraj Brar, Advocate
for respondent No. 1.
T.P.S. MANN, J.
One of the judgment debtors has filed the present revision
under Article 227 of the Constitution of India so as to challenge the order
dated 16.8.2008 passed by the executing Court directing the police to
provide necessary help to the decree holder to obtain possession of the
property in question. Order passed by the executing Court on 27.9.2008
issuing warrants of possession has also been challenged.
Boor Singh-decree holder filed a suit for possession through
redemption on 21.11.1996, which was decreed on 7.10.1997 and a
preliminary decree was passed against the petitioner and others. The said
decree was upheld by the first appellate Court on 19.10.2000 and thereafter
by this Court in a second appeal, i.e. R.S.A. No. 285 of 2001 on 23.2.2001.
After complying with the directions regarding deposit of the requisite
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amount of Rs. 27,800/-, the decree holder filed an application for passing of
final decree. The petitioner and other judgment debtors, who were in
possession of the property in question, objected to the same on the ground
that the decree had not been drafted and prepared in accordance with the
provisions of law and that the application was also not filed on the
prescribed performa and within the prescribed period. Their objections
were turned down on 7.12.2001 by learned Additional Civil Judge (Senior
Division), Faridkot. The application for passing of the final decree was
allowed and warrants of possession issued against the judgment debtors.
This order was challenged by the present petitioner by filing an appeal,
which was dismissed by learned Additional District Judge, Faridkot on
13.2.2003. Still not satisfied with the same, the petitioner filed R.S.A.
No. 1775 of 2003, which he withdrew on 6.8.2007 with liberty to approach
the trial Court to frame the final decree. The petitioner did file an
application dated 24.3.2008 for passing of final decree which was objected
to by the decree holder by filing reply dated 26.4.2008 wherein it was
submitted that vide order dated 7.12.2001, learned Additional Civil Judge
(Senior Division), Faridkot had already passed the final decree and only the
formality of preparation of decree sheet remained. That did not affect the
merits of the case nor also the jurisdiction of the Court to issue warrants of
possession.
An application was, thereafter, filed by the decree holder for
providing police help on the ground that the bailiff had reported that
possession could not be delivered without the same. After going through
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the evidence of the bailiff and the decree holder, learned Civil Judge
(Junior Division), Faridkot passed the impugned order dated 16.8.2008
ordering for police help to the decree holder for execution of the warrants
of possession.
Learned counsel for the petitioner submitted that only
preliminary decree had been passed for redemption of the suit property but
no final decree sheet had been prepared. An application filed by the
petitioner before the learned trial Court for passing the final decree was still
pending and unless and until the final decree is passed, warrants of
possession could not have been issued.
Learned counsel for Boor Singh-decree holder/respondent
No. 1 submitted that the preliminary decree was passed as far back as on
7.10.1997, which was upheld right upto this Court and, thereafter,
application for passing of final decree was filed, which was allowed by
learned Additional Civil Judge (Senior Division), Faridkot on 7.12.2001
and resultantly, warrants of possession were issued against the judgment
debtors. The said order of passing of final decree was challenged by the
petitioner by filing an appeal which was dismissed by learned Additional
District Judge, Faridkot on 13.2.2003 and even R.SA. No. 1775 of 2003
filed by the petitioner was withdrawn by him on 6.8.2007. Though the
petitioner had sought liberty from this Court to approach the trial Court to
frame a decree yet for all intents and .purposes, a final decree was earlier
passed by the trial Court and only the formal decree sheet had not been
prepared. This would not have affected the merits of the case or the
Civil Revision No. 5803 of 2008 -4-
jurisdiction of the lower Court to issue the warrants of possession in favour
of the decree holder and providing of police help to him.
Order XXXIV of the Code of Civil Procedure, 1908 deals with
with the procedure in respect of suits relating to mortgages of immovable
property. Rule 7 thereunder provides for passing of a preliminary decree in
a suit for redemption, in the event of plaintiff succeeding. Once the
plaintiff pays into Court the amount so found or declared due, the
defendant could be asked to deliver up to the plaintiff, all documents in his
possession or power relating to the mortgaged property, and shall, if so
required, re-transfer the property to the plaintiff at his cost, free from the
mortgage and from all encumbrances created by the defendant or any
person claiming under him and shall also, if necessary, put the plaintiff in
possession of the property. The law does not require passing of final decree
in a suit for redemption before ordering the defendant to re-transfer the
mortgaged property or ordering him to put the plaintiff in possession of the
property. In the event of the plaintiff not paying the amount found or
declared due under or by the preliminary decree on or before the date so
fixed or the plaintiff fails to pay, within such time as fixed by the Court,
the amount adjudged due in respect of subsequent costs, charges, expenses
and interest, the defendant becomes entitled to apply for a final decree.
Even before passing of a final decree in a redemption suit so as as to debar
the plaintiff from all rights to redeem the mortgaged property, if the
plaintiff makes payment into Court of all amounts due from him under sub-
rule (1) of Rule 7, the Court shall, on an application made by the plaintiff in
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this behalf, pass a final decree so as to order the defendant to deliver up the
documents referred to in the preliminary decree and if necessary, to re-
transfer the mortgaged property and also to put the plaintiff in possession of
the same. The procedure regarding passing of final decree in redemption
suit is contained in Rule 8.
There is no denial of the fact that after the passing of final
decree, Boor Singh-decree holder complied with the same by depositing the
requisite amount of Rs. 27,800/- and, accordingly, prayed for possession of
the house. In such a situation, there was no requirement of passing of a
final decree. On the deposit of the amount due, learned lower Court was
competent to direct the issuance of warrants of possession of the house in
question in favour of the decree holder.
The petitioner, who is one of the judgment debtors, is relying
upon the application filed by him before the learned lower Court and, that
too, after withdrawing his second appeal from this Court, wherein he has
prayed to the lower Court to pass a final decree. To my mind, the petitioner
is wrongly placing reliance on the provisions of Order XXXIV Rule 8 as it
comes into operation only in the event of the plaintiff not making the
payment of all amounts due, as a result of which the defendant could debar
him from the right to redeem the mortgaged property by asking for passing
final decree.
The case of the decree holder was clearly covered by Rule 7
(1), which envisages issuance of directions to the defendant to deliver up to
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the plaintiff all documents in his possession or power relating to mortgaged
property, besides re-transferring the property to the plaintiff and if
necessary, to put the plaintiff in possession of the property.
Even if, the argument on behalf of the petitioner is accepted
that no final decree had been framed by the trial Court for any reason, one
can refer to the order passed by learned Additional Civil Judge (Senior
Division), Faridkot on 7.12.2001 whereby application filed by the decree
holder for passing the decree finally was allowed. Even after withdrawing
his second appeal on 6.8.2007, the petitioner filed an application before the
lower Court for passing of a final decree and while objecting to the same,
the decree holder had clearly stated that a final decree had been passed on
7.12.2001 and, only a formal decree sheet had not been prepared. Non-
preparation of the formal final decree could not have affected the merits of
the case or the jurisdiction of the lower Court in issuing warrants of
possession, besides, providing police help to the decree holder.
For the reasons mentioned above, the impugned orders passed
by the lower Court do not suffer from any illegality or infirmity. The
revision is, accordingly, dismissed.
( T.P.S. MANN )
November 20, 2008 JUDGE
satish
Whether to be referred to the Reporters : YES / NO