IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.869 of 2008
MURARI LAL DUBEY
Versus
SHAILESH KUMAR PANDEY & ORS
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3 3.7.2008 Heard the counsel for the petitioner.
The petitioner is aggrieved by an order dated
17.5.2008.
It is submitted by the counsel for the petitioner that
as a matter of fact when the plaintiffs-decree holders had
themselves made prayer for preparation of final decree the
view taken by the court below that there was no requirement
for preparing preliminary decree is absolutely incorrect.
In this context on perusal of the impugned order it
becomes absolutely clear that before filing of the mortgage
suit an application under section 83 of the Transfer of
Property Act vide Misc. case no.25/94 was filed wherein
amount due under mortgage was deposited and therefore,
the court below had come to a finding in the mortgage suit
there was no requirement much less any question of
deciding mortgage amount and the interest payable on that
amount and on this factual premises the court below had
proceeded to pass an order that there was no impediment in
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passing final decree. The court below in this context has
also referred to two judgments of the case of Sayeeda
Khatoon vs Bibi Sayeeda Tahira Nahid reported in (2001)2
BLJR 1493 and in the case of Krishnan vs Muthu Gounder
& others reported in 1997 Madras 57.
In the opinion of this court the detailed
consideration on facts as noticed in the impugned order
which also remain uncontroverted in this civil revision
application can not be ignored by this court specially when
there is no denial to the basic fact that the entire amount
was already paid before institution of the mortgage suit.
After this order has been dictated, counsel for the
petitioner raised a grievance that the amount which was
deposited in the aforementioned Miscellaneous case , has
not yet been received in the Execution court. If that be so
the counsel for the petitioner is given liberty to approach the
court below on this limited point.
With the aforesaid observation, this Civil Revision
Application is dismissed.
shahid (Mihir Kumar Jha, J)