JUDGMENT
P.K. Deb, J.
1. This revision petition has been preferred against the order dated 15-12-2000 passed by the learned Execution Munsif, Patna in rejecting Misc. Case No. 9 of 2000 in limine by which the petitioner had claimed for dismissing the Execution Case No. 11 of 1988 as not maintainable. The said Misc. Case was registered on the basis of the petition filed by the petitioner/judgment debtor under Section 47 read with Section 151 of the Code of Civil Procedure raising objection to the effect that the execution Case No. 11 of 1988 cannot be maintainable as the same was filed for executing a preliminary decree passed in Title Mortgage Suit No. 21 of 1987.
2. There is a chequered history of the case. One Bibi Habiba Sogra @ Sakina was the owner of the suit property. She sold the property to Md. Eqbal Yusuf from whom the plaintiff-decree holder Bibi Sayeeda Tahira Nahid had purchased the same vide sale-deed dated 12-1-1985 but,Bibi Habiba Soghra before sale to Md. Eqbal Yusuf had already mortgaged the suit property through usufructurary mortgage deed dated 30-7-1963 for a period of six years on a consideration of Rs. 6,500/-. The petitioner happened to be the mortgagee. The plaintiff-decree-holder had purchased the suit property for residential accommodation and she was staying in a rented house paying rent to the tune of Rs. 400/- per month. After purchase the plaintiff-decree-holder tendered the mortgage amount to the defendant-petitioner but she refused to accept the same on this plea or that plea. Then the plaintiff decree-holder filed an application under Section 83 of the T.P. Act before the Sub-Judge, 1st Court, Patna on 22-8-1986 and such application was registered as Misc. Case No. 65 of 1986. As per permission granted by the Court the plaintiff deposited the mortgage amount in the Court and then notices were served on the defendant-petitioner to accept the mortgage amount and to return the mortgage deed but it was alleged that the plaintiff-petitioner had refused to accept the mortgage amount and then the decree-holder/plaintiff filed title mortgage Suit No. 21 of 1987 for redemption of the mortgage. The said suit was contested by the defendant-petitioner on various pleas. The mortgage of the suit property had not been denied but it was alleged that the petitioner-defendant had made various developments in the suit property constructed houses thereon and, as such, levied a huge amount of the suit property. Various issues were framed and the vital issues were Issue Nos. 5 and 6, namely Issue No. (5) Whether the mortgage money was validly tendered to the defendants and they refused? (6) Whether the claim of the defendant on account of repair and improvement etc. is legal and whether the defendant is entitled for the same?
3. The learned Munsif decided all the issues in favour of the plaintiff-decree-holder and it was ordered in the following manner:
That the suit be and the same is decreed on contest but in my opinion, in the present case it would be very hardship upon the mortgagee and hence I am not inclined to award cost of the suit to the plaintiff. The parties will have to bear their own cost. Let a preliminary decree be passed in favour of the plaintiff. (Emphasis supplied by me) and the defendants are directed to withdraw the mortgage money deposited under Section 83 of the T.P. Act vide Challan No, 2318 dated 13-1-1987 in the Court of Sub-Judge 1st, Patna, in Misc Case No. 65/ 86 and they are also directed to give vacant possession of the suit premises and to return the original mortgage deed dated 30-7-1963 bearing No. 6243 created by Bibi Soghra with the endorsement of the deed of the receipt of the mortgaged amount to the plaintiff within two months from this date failing which the plaintiff will be put in vacant possession of the premises in suitthrough the process of the Court.
4. Such decree was passed on 27-2-1988 and against that decree the defendant-petitioner who is the judgment-debtor had filed appeal and then second appeal and then also S.L.P. to the apex Court but every where the petitioner had lost and thus, the decree passed by the Original Munsif Court, Patna as mentioned above had been retained. Soon after the decree was granted, the decree was put in execution being Execution Case No, 11 of 1988 but because of filing of the appeals at different times in different forums by the petitioner the execution case could not proceed and when the same had proceeded ultimately the petitioner, filed a petition to the effect that the present execution case is not maintainable as there is no scope under the Civil Procedure Code under Order XXI to proceed in execution on a preliminary decree. Such petition was filed by the petitioner under Section 47 of the Civil Procedure Code but the petition had not been entertained and the same has been dismissed being Misc. Case No. 9/2000 inlimine. The petition under Section 47 of the Code of Civil Procedure has not been gone into an enquiry but had been rejected as not being entertainable. Hence, this revision petition has been filed.
5. The only point urged before this Court by the petitioner to the effect that when a preliminary decree has been passed in title mortgage Suit No. 21 of 1987 and when after the preliminary decree no final decree has been passed as contemplated under Order XXXIV Rule 8 of the C.P.C. and when the decree has not been prepared as per Civil Court Rules such decree is not an executable one. Hence, the execution of a prelimianry decree of the mortgage redemption suit being unknown for the purpose of execution under Order XXI of the C.P.C, the present proceeding of an execution case is totally barred under the law. On other hand Mr. S. Asgar Hussain, Sr. Counsel for and on behalf of the opposite party submitted that the plea taken by the petitioner is only a technical plea and even if there is any technical irregularity in preparation of the decree the said irregularity cannot be held to be a futile one for the purpose of execution. His further submission is that the present revision petition is not maintainable as after the amendment of the C.P.C. any order passed under Section 47 of the C.P.C. is in the form of a decree and, as such, appeal is maintainable.
6. On the point regarding maintainability of the revision petition it can be held that the petition filed under Section 47 of the C.P.C. had not been gone into arr enquiry as required under the law and such petition had been rejected in limine as being not entertainable. I think appeal may not be maintainable against such order but revision would be maintainable but without going into such discrepancies regarding the maintainability of the Misc. Appeal or the revision petition let me first of all consider whether there is any merit in the contention of the petitioner regarding the non-maintainability of the execution process. On the face of the records and the wordings of the operative part of the decree passed it could be found that a preliminary decree has been passed by the learned Munsif on the redemption suit as per provisions of Order XXXIV Rule 7 a preliminary decree can be passed in a redemption suit and after the accounts are being finalised after the preliminary decree is passed then final decree is to be passed as per Rules 8/8-A of Order XXXIV of the C.P.C. But, here it appears that the decree has been prepared as per regular suit as contemplated under Order XX Rule 12 of the Civil Procedure Code but when a preliminary decree is passed in respect of the mortgage suit either for foreclosure or for redemption, Order XXXIV of the C.P.C. shall come into play and in normal procedure even in a redemption suit preliminary decree is to be passed if the accounts are not being finalised and if the accounts are finalised then a final decree is to be passed as contemplated under Rules 8 and 8-A of Order XXXIV of the C.P.C. long back this has been decided by the judgment reported in AIR 1935 Patna 385 where in Courtney Terral, the then Chief Justice held that a preliminary decree in a redemption suit in the form of compromise is non-executable decree until and unless a final decree is being prepared as contemplated under Order XXXIV C.P.C. but the factual aspect of that case is totally different from the present case. Here in the present case before the redemption suit was filed from the side of the decree holder-plaintiff an attempt was made by the plaintiff to get the mortgagee redeemed as per provisions contemplated under Section 83 of the Transfer of Property Act. By the Court’s order the mortgage amount had already been deposited by the plaintiff long back in the year 1986 and when tendered, the defendant-petitioner had refused to accept the same. Then the redemption suit was filed and in the redemption suit again the defendant-petitioner took the plea of repair, improvement etc. and claimed various amounts in that respect from the plaintiff. That issue was elaborately considered regarding accounting by the learned Munsif who ultimately granted decree in favour of the plaintiff-decree holder holding that the defendant-petitioner is not entitled to any further amount in respect of the claims made regarding repairs, improvement development etc. etc. over the suit property as the terms of the mortgage deed did not give the defendant-petitioner to have such claims entertainable. In a redemption suit a preliminary decree is granted as per Rule 7 under Order XXXIV of the C.P.C. There are different clauses while granting preliminary decree in redemption suit as per Sub-rule (1) conditions being contemplated under Clauses (a), (b) & (c). Under condition clause (c) of Sub-rule (1) of Rule 7 under Order XXXIV, the Court granting preliminary decree can direct in the following circumstances:
(c) directing:
(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the amount taken under clause (b) or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10 together with subsequent interest on such sums respectively as provided in Rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power celating 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 incumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary put the plaintiff in possession of the property….
7. Thus even under a preliminary decree on application of Clause (c) as mentioned above there can be direction by the Court as per contemplated above to the defendant and gives the finality of the decree if required in the circumstances and such decree passed can definitely be executable if the terms of directions are not satisfied by the defendant in the preliminary decree itself. If we now harmoniously read’s such clause (c) of sub-rule, of Rule 7 and that of Rule 8 by whfch the final decree is to be passed in a redemption suit then it can be construed that a decree in its finality can also be passed in a redemption suit without going for passing the decree as a preliminary decree and then as a final decree the later part if all the requirements required for the final decree are already been adjudicated within the contour of the decree being passed in the redemption suit in it final form. For consideration of this aspect it is required to find out the very purpose of passing a preliminary decree and then a final decree in a redemption suit. A preliminary decree is being passed making the plaintiff entitled for getting redemption of the mortgage and if the accountings are not being done at the time of passing of the preliminary decree as per Clause (c.) of Sub-rule (1) of Rule 7 under Order XXXIV of the C.P.C. then the accounting part is to be decided within the forum of final decree and then after accounting is being done the final decree is to be passed under Rule 8 of Order XXXIV of the C.P.C. As per Hon’ble Courtney’s judgment definitely when a preliminary decree is passed simplicitor under Rule 7 of Sub-rule (1) Clauses (a) and (b) without finalising the accounts as per clause (c) then such preliminary decree remains in executable but if during the course of passing of the preliminary decree under the redemption suit itself as per Clause (c) of Sub-rule (1) of Rule 7, accounting is already done then the same remains inconformity with the finality of the decree as per Rule 8 of Order XXXIV of the C.P.C. and then definitely such decree becomes a final decree and not remains a preliminary decree. In the present case the circumstances are to be looked into as has been done by the learned Court below in the impugned order. It is true that word ‘preliminary decree’ had been mentioned in the operative part of the decree passed in the suit but practically the whol ething of accounting has already been done while deciding issue No. 6 of the suit itself. That means the learned decreeing Court considered all aspects of the final decree while construing the operative part under Clause (c) of Sub-rule (1) of Rule 7 of Order XXXIV C.P.C. Already the amount of mortgage had been tendered by the plaintiff while proceeding under Section 83 of the T.P. Act and such tendering had been refused from the side of the defendant. If the defendant would have accepted such tendering from the side of the plaintiff regarding the mortgage amount then there would have been no necessity of filing of the redemption suit itself. In the suit the mortgage has been admitted from the side of the defendant and only they claimed regarding accounts by making averments regarding repair, improvement, development etc. in the mortgage property and whether the’defendant is entitled to such amounts further than that of the consideration of the mortgage deed had already been considered by the learned Munsif while passing decree in the redemption suit with elaborate discussion by giving opportunity to the defendant to its fullest extent. So whatever was necessary after preliminary decree is passed in the redemption suit regarding consideration of the accounting had already been considered by the learned Munsif while passing the decree in the redemption suit and if we harnoniously and side by side construe as mentioned above Rule 7 with its Sub-rule (1) Clause (c) and purpose of Rule 8 of the Order XXXIV C.P.C. then it can be very well found that although the word ‘preliminary’ had been used by learned Munsif in the operative part of the judgment practically all necessaries and ingredients required for the final decree had been considered and decided while passing the decree itself so the word ‘preliminary’ used in the operative part of the judgment remained only a misnomer. Practically the final decree has been passed with all its ingredients being satisfied in the judgment itself. Even if we construe that there was some irregularity in not preparing the decree in its final form as required in a redemption suit under Order XXXIV of the C.P.C. giving go-bye to Civil Court then the same remains only an irregularity and does not take away any right enshrined under the C.P.C. or under natural justice provided to the defendant, Only for technicality a long drawn decree cannot be thrown out holding that the same is inexecutable. No where in the present case it could be found that the defendant has not been given proper opportunity to place his case before the Court, regarding accounts which are to be decided under the forum of preparation of final decree had already been considered by the learned Munsif while passing the decree in favour of the plaintiff-decree holder and all opportunities to that effect had been given to the defendant and they placed their grievance with all its entirety and substantiated by adducing evidence to that effect. That portion of accounting had been challenged by the defendant-petitioner in various forums of appeal against the original decree and fought upto the apex Court but all remained in vain and no-where it could be shown that the defendant-petitioner who happens to be the judgment-debtor had raised any objection regarding the using of the word ‘preliminary’ in the operative part of the judgment. Only for technicality’s sake in my opinion, the long drawn decree cannot be thrown out holding the same an inexecutable unless it could be shown that the defendant-judgment debtor had not been given proper opportunity to fight out his case in its proper perspective. Even if we consider that the present decree is inexecutable being a preliminary decree then what comes to its result (3) rather on the basis of that decree a final decree is to be drawn on proper form as per the Civil Court rules which are only the ministerial works of the officers of the Court and the same remains to be done as a matter between the Court and its officers. The defendant or the plaintiff have got nothing to do with it. The technical defect in not going through the particular provisions of rules under the C.P.C. could not affect the administration of justice or it cannot be construed as a jurisdictional error until and unless’it could be shown that the same affects the rights of the adverse party. A full bench of this Court has held as reported in AIR 1947 Patna 454 (Ramlal Sahu v. Mt. Ramia) that a technical defect would not go to the root of the jurisdiction of the Court executing the decree unless it could be held that the execution is wholly void. In that judgments several judgments of this Court and the Privy Council have been considered. In that case a sale held in the execution proceeding was attempted to be held void on the ground that no notice was properly served under Order XXI Rule 22 of the C.P.C. on the heirs of the original judgment-debtor who died during the pendency of the execution proceeding. By considering the factual aspect it was found that all opportunities required under the law to be given to the judgment-debtor or its heirs had been given before conducting sale in the execution proceeding and by taking recourse to the fact that service of notice under Order XXI Rule 22 C.P.C. remained defective did not make the sale void but it would make the same to be voidable and if opportunities of objection at every step were given to the judgment-debtor or its heirs then the sale cannot be held to be void and the execution proceeding should also not be held to be void because the justice should be given in its proper perspective to both the parties. A technicical defect made in the Court not for the fault of the decree holder but for the fauity approached of the Court or its ministerial staff cannot take away the right of a decree holder which had been accrued to him by the process of law unless it could be shown that the position was such that it had taken away the right of the adverse party i.e. the judgment-debtor enshrined under the provisions of law.
8. In the present case after giving proper thought on the crux of the point as raised and on consideration of the factual aspect’in its proper perspective I come to the finding that practically some technical irregularity might be there in construing the preparation of the decree but by that technical defect no right could have been taken away which had been conferred on the petitioner by the provision of law rather the defendant-petitioner who happens to be the judgment-debtor had been given all opportunities at every stage and any defect in not preparing the. decree in its proper form is only a defect or a matter in between the Court, and its ministerial staff, the same would not take away the jurisdiction of the Court in executing the decree. The word preliminary used in the operative part of the decree in the circumstances of the case should be held to be a slip of the pen only. Thus, on the point of law as discussed above, I do not find any force in this revision petition and hence the same is rejected.