TMI Blog1991 (11) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt on an area approximating 1 Bigha 6 cottahs, with three storied building on it consisting of 32 spacious rooms and two out houses. On the demise of Raja Abhoy Narain Deb, the appellant herein, and the proforma respondents, succeeded as heirs to the same on September 15, 1949. The appellant and his co-heirs mortgaged their two-third interest in the said property as security for a loan of ₹ 27,000 obtained from the mortgagor Smt. Prokashini Biswas, the predecessor-in-interest of the plaintiffs-respondents. After her death some of the heirs and legal representatives of Smt. Biswas, on March 13, 1961, filed a mortgage suit for the recovery of the mortgage money etc. in the court of the 3rd Subordinate Judge at Alipore, being title Suit No.17 of 1961, seeking enforcement and sale of the mortgaged proper- ty. To this suit the left out heir of Smt. Biswas, originally arrayed as a defendant, was transposed as a co-plaintiff. On July 25, 1962, the trial court passed a preliminary decree in the sum of ₹ 27000 for the principal sum and a sum of ₹ 24570 for interest on the said principal, totalling ₹ 51570, together with costs. The sum of ₹ 51570 was proportion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the executing court ordered that both the valuations be incorporated in the sale proclamation. The sale, however, did not take place till March 15, 1968 and a period of over 4 % years passed by in the mean time. By that time, the value of the property, according to the appellant, had risen to ₹ 6 lacs for which on March 4, 1968, before the sale, the appellant made a regular objection under section 47 of the Code of Civil Procedure. Within the intervening period of 4 1/2 years, some more deposits apparently were made by the appellant. The property was all the same sold on March 15, 1968, on the proclamation of sale as was drawn on August 10, 1963, for ₹ 1,00,500 in favour of the auction purchasers respondents 6 7 herein. On April 11, 1968, the appellant yet filed an application under Order 21 Rule 90 C.P.C. for selling aside the sale and prayed for stay of its confirmation basically on three grounds: (i) the judgment-debtors had no saleable interest in the mortgaged property; (ii) legally two execution petitions could not be consolidated; and (iii) the provisions of section 35 of the Bengal Money Lenders' Act had been overlooked. This petition was treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional documents submitted to this Court. The preliminary decrees for sale, details apart, besides striking the amount due payable in instalments, mentions the time for payment, further provides that in default of payment as provided, the plaintiff may apply to the Court for final decree for the sale of the mortgaged property; and on such application being made. The mortgaged property or sufficient part there- of. shall be directed to be sold; and for the purpose of such sale, the plaintiff shall produce before the court or such officer, as it appoints, all documents in his possession or relating to the mortgaged property. It is evident from the terms of the final decree that it was passed on the basis of the preliminary decree dated July 25, 1962 and the plaintiff making an application on September 19, 1962 for a final decree, and it appearing that the payment directed by the said decree and orders had not been made by the defend- ant or any person on his behalf or any other person entitled to redeem the mortgage. the Court then ordered and decreed that the mortgaged property in the preliminary decree afore-mentioned, or a sufficient part thereof, be sold and that for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt from time to time, at any time before any decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. Rule 3 of Order 34 provides that when an application is made by the defendant seeking a final decree, the Court has two courses open depending on the defendant making payment in Court of all amounts due from him under sub-rule (1) of Rule 2, and not making payment. Under sub-rule (1) of Rule 3, a final decree of one kind may be passed in terms thereof. if payment is made. But if no payment is made a final decree of the other kind may be passed in terms of sub-rule (2) of Rule 3. Sub-rule (3) of Rule 3 enjoins that on the passing of a final decree under sub-rule (2) all liabilities to which the defendant is subject in respect of mortgage or on account of suit shall be deemed to have been discharged. Under Rule 5, the defendant is given another opportunity to make payment of all amounts due from him under sub-rule (1) of Rule 4, if such payment. is made on or before the day fixed or at any time before the confirmation of sale in pursuan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... money decree in execution of which the auction purchaser got to buy the judgment-debtors immovable property. Still the underlined words in the extract from Janak Raj's case (supra) conceivably leave to the judgment-debtor his rights under the Civil Procedure Code whereby he can have the decree passed against him set aside and to seek appropriate reliefs on the basis thereof. Now coming to the substituted preliminary decree, even though by consent, there is no denying the fact that the seal of adjudication gets affixed to it. The Court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties. It conclusively determines the right of the parties with regard to the matters in controversy valid in the suit till the stage of passing of the preliminary decree. The Explanation to Section 2(2) of the Code of Civil Procedure defining the word decree , goes to say that a decree is preliminary when further proceedings had to be taken before a suit can be completely disposed of. It is final where such adjudication completely disposes of the suit. It may be partly preliminary and partly final. The preliminary decree in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participation of the auction purchasers to their detriment. There is an obvious fallacy in the argument. Significantly, for the purposes of Section 47, the auction purchaser deemingly is a party to the suit in which the decree is passed if he has purchased the property at the sale and execution of that decree. Instantly, the auction purchasers had purchased the property in execution of the final decree and not in execution of the preliminary decree and on that basis can at best be deemed to be parties to the suit throughout only on the strength of the final decree if obtained on the terms of the existing preliminary decree. But here the property, as said before, was not put to sale in execution of the preliminary decree. The auction purchasers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the preliminary decree. It is to be remembered that both the preliminary decree and final decree are passed under Order 34 of the Code of Civil Procedure in one and the same suit, in which two decrees may be required to be passed at separate stages. And both being formal adjudications appropriate to the stage are formal expressions of deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty sold in execution of the decree. Here the relief in the suit is inextricably connected with the property sold. The two cannot be divorced diverting them to different courses. The substituted preliminary decree is the one passed under Rule 4 of Order 34 and involves the property in dispute. It so happens that the stage of Rule 5 Order 34 stands withdrawn, rendered nonest and wiped out. No compensatory sum is due to the auction purchasers under the strict terms of sub rule (2) of Rule 5 of Order 34, where under the defendant mortgagor, in addition to the payment of all amount due from him under sub-rule (1) of Rule 4. is required to deposit a sum equal to 5% of the amount of the purchase, money paid into the Court by the auction purchaser, which obviously is meant to compensate the auction purchaser. That stage in the eye of law has not arrived. Since in strict sense the provisions would not be applicable to the facts of the instant case, we in exercise of the Court's inherent powers under the Code and powers otherwise under Article 142 of the Constitution, to further the cause of complete justice, confining it to the facts of this case, and to be fair to the auction purchas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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