TMI Blog2017 (12) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... e years from the date of expiry of 30 days which was prescribed to the defendants for payment, an application for final decree became barred by law of limitation in terms of Article 137 of the Limitation Act, 1963. To me, it appears that there is no question of applying the law of limitation for preparation of a final decree because the plaintiff Bank was not given a preliminary mortgage decree in terms of Order 34 Rule 4 read with Form 5A of Appendix ‘D’ of the Code of Civil Procedure and if the Bank was not given this opportunity to file an application for preparation of a final decree, there was no fault on the part of the Bank in not applying for preparation of a final decree. No doubt, law of limitation is based on a sound public policy but at the same time the court would not be willing to apply the rigours of the Limitation Act to defeat a just and valid claim of the Bank which has now crystalised on adjudication by a competent court of law. Applying principle of limitation in the facts of this case would amount to deprive the plaintiff Bank of the fruits of the judgment for no fault on its part. It would amount to giving undue benefit to the borrowers and the guarantors by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. Raj Kishore Prasad Singh and Mr. Bal Bhushan Chaudhary, Advocates CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Some fine points of the civil laws, as contained in the Code of Civil Procedure, have come up for consideration in the present Letters Patent Appeal. 2. Central Bank of India, a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (hereinafter referred to as the Bank ) has preferred the present appeal questioning the judgment dated 11.12.2013 passed by a learned Single Judge of this Court in CWJC No. 1665/2009. The learned Single Judge has allowed the Writ Application and thereby accepted the prayer of the petitioners to quash the order dated 31.08.2009 passed by the Presiding Officer, Debts Recovery Tribunal, Patna in M.A.No. 07/2009 as also the order dated 19.04.2007 passed in OA (Ex.) Case No. 15/2006 and the resultant certificate issued by the Debts Recovery Tribunal, Patna in the said execution case for realization of a sum of ₹ 18,99,760.69 being the total of (i) decreed amount of ₹ 1,49,628.89 plus (ii) interest @ 14% per annum with quarterly rests from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the judgment and decree dated 21.04.1995 passed in Title Mortgage Suit No. 572/1986 because it is the said decree which need to be construed and has been construed by the learned single Judge holding that it is a preliminary mortgage decree but not properly worded by the learned Subordinate Judge III, Danapur. 6. The Execution Case No. 5/1996 pending before the learned Subordinate Judge III, Danapur got dismissed in default on 17.04.2004. During pendency of the execution case, one of the guarantors, namely, Lal Kishun Singh, who happened to be judgment debtor no. 4 and father of the respondent no. 2 in the present appeal died on 02.02.2003 but no step for substitution was taken by the Bank. 7. During pendency of the execution case, the Special Statute, namely, Recovery of Debts Due to Bank and Financial Institution Act, 1993 (hereinafter referred to as the DRT Act ) came to be amended on 17.01.2000; Section 31-A was introduced in the DRT Act which reads as under:- 31- A. Power of Tribunal to issue certificate of recovery in case of decree or order - (1) Where a decree or order was passed by any Court before the commencement of the Recovery of Debts Due to Bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the manner and mode prescribed under section 25 and 28 of the Act from the defendants and report compliance with remittance of RP. file for final withdrawal of certificate u/s. 26[2] of the Act and withdrawal of attachment by the Presiding Officer. 9. By virtue of the certificate granted vide order dated 19.04.2007 the recovery proceeding being R.P. Case No. 16/2007 was registered and the Recovery Officer issued a notice dated 27.03.2008 under Section 29 of the DRT Act. The judgment debtors thereafter moved this Court in CWJC No. 14720/2008 challenging the order dated 19.04.2007 passed by the Debts Recovery Tribunal, Patna and an issue as to jurisdiction of the Debts Recovery Tribunal in entertaining an application under Section 31-A of the DRT Act and the maintainability of the said application were raised on the following grounds:- (i) that a preliminary decree in a mortgage suit is not an executable decree, it is executable only when a final decree is prepared for sale of the mortgaged assets for recovery of the amount under the mortgage and such decree in a mortgage suit cannot be treated to be a simple money decree, therefore, cause of action of a preliminary decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 passed by the Presiding Officer, Debts Recovery Tribunal. The judgment debtors, therefore, once again moved this Court giving rise to CWJC No. 16665/2009 in which the order passed by the Presiding Officer in MA No. 7/2009 as also the previous order dated 19.04.2007 passed in OA (Ex.) Case No. 15/2006 giving rise to the recovery proceeding were challenged. It is this final judgment passed in CWJC No. 16665/2009 dated 11.12.2013 which is impugned in the present Letters Patent Appeal. SUBMISIONS NATURE OF DECREE - LIMITATION 12. Before the learned single Judge, learned counsel representing the judgment debtors-respondents mainly argued that the decree in the present case is a preliminary mortgage decree which is not executable and enforceable. It is his further plea that because there is no specific Article provided in the Schedule of the Limitation Act, 1963 prescribing limitation for filing of an application for preparation of a final decree in terms of Order XXXIV Rule 5 of the Code of Civil Procedure, the same would be covered by the residuary Article 137 which provides a period of three years as limitation from the date when the right to apply accrued. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omposite decree, i.e., the money decree as well as mortgage decree, hence, the final decree was not necessary to be drawn and the execution case was filed in the court of the learned Subordinate Judge III, Danapur with correct amount. Further, learned counsel for the Bank submitted that the decree in the present case is based on adjudication and payability of a debt owned by the judgment debtors, hence, it is a debt as envisaged under Section 2(g) of the DRT Act which would be legally enforceable. The Bank took a stand that a second execution case, even if filed within a period of 12 years from the date of decree, as envisaged under Article 136 of the Schedule of the Limitation Act, 1963, was not barred and, hence, the application under Section 31A of the Act was well within limitation In his contention the composite decree in the present case was executable without the necessity of any final decree under Order XXXIV Rule 5 CPC, reliance was placed on several judicial pronouncements which we will refer while dealing with the submissions of the parties before us. FINDINGS IN WRIT 16. On consideration of the rival submissions, learned single Judge decided the various i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 5/1996 in default would operate as res judicata to the application filed before the Debts Recovery Tribunal, Patna. On this issue, the learned single Judge referred paragraph 6 of the judgment of the Hon ble Supreme Court in the case of Shivshankar Prasad Sah Anr. Vs. Baikunth Nath Singh Ors. , reported in AIR 1969 SC 971 , which was placed before the learned single Judge to submit that the plea of res judicata advanced by the petitioners was not tenable in law as dismissal of the execution case in default does not operate as res judicata, therefore, the second application for execution before the Debts Recovery Tribunal was maintainable. Learned single Judge agreed that dismissal of the execution case in default, when no hearing took place, shall not operate as Res Judicata . (iv) Effect of non-substitution of deceased defendant no. 3- (judgment debtor no. 4) On this issue, on behalf of the Bank it was submitted that the question of nullity does not arise in an execution case as Order XXII Rules 4 and 5 does not apply. It was submitted that the Bank was not aware of the death of original defendant no. 3 which fact was concealed by the petitioners even in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the preliminary decree itself was not executable in the Civil Court unless a final decree having been applied for and is prepared in terms of Order XXXIV Rule 5 of the Code of Civil Procedure providing for selling out of the mortgaged properties. It was further held that In terms of the reliefs sought by the plaintiff and granted by the decree dated 21.4.1995, the decree could not have been further executed as a money decree against the defendants without first getting an order under Order 34 Rule 6 in case the sale of the mortgaged properties could not satisfy the decreetal amount with interest and cost etc. Thus, according to me, the Execution Case No. 05/1996 was non est and invalid in law and could not have been carried into effect as an execution because it was only for the execution of the preliminary mortgage decree. . . (ii) Application for final decree barred by limitation. Learned single Judge having held that the decree dated 21.04.1995 was in the nature of a preliminary decree directing the defendants to pay the entire decreetal amount within 30 days from the date of passing of the order, further held that an application for final decree ought to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tertainability of the writ, because of availability of a statutory remedy of appeal under the provisions of the DRT Act. The learned single Judge, however, held that when a question of jurisdiction has been raised by the petitioners in the present writ application, the plea of alternative remedy of appeal cannot be accepted and, hence, the court can very well go into the jurisdictional issues. SUBMISSIONS OF THE APPELLANT-BANK 17. Learned counsel representing the Bank has built up his argument on his submissions- (i) that the decree dated 21.04.1995 is a composite decree inasmuch as not only it determines the actual amount due to the Bank and recoverable from the judgment debtors but also states that in case of failure of the judgment debtors to pay the said amount within the prescribed period of 30 days the same would be recoverable from the judgment debtors through execution of the same; (ii) that the decree dated 21.04.1995 nowhere states that the plaintiff had to apply for a final decree, rather the court passed a decree against the defendants as well and dispose of the suit itself, therefore, if no application for final decree which is under Order XX, Rule 6 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion; (vi) that even a preliminary mortgage decree would come within the ambit of the words decree or order as stated in Section 31A of the Act and under the provisions of the DRT Act, 1993, which is a Special Statute, no period of limitation is prescribed for execution of decree which was already under execution in Execution Case No. 05/1996 and was subsisting till 17.01.2004, therefore, the cause of action for filing of an application under Section 31A of the Act arose to the plaintiff Bank only on or after 17.01.2004 when the Execution Case No. 05/1996 came to be dismissed in default. The application under Section 31A was filed within a period of twelve years from the date of decree which is in accordance with Article 136 of the Schedule of the Limitation Act, 1963 and, hence, no question of limitation in filing of an application under Section 31A of the Act would be raised against the plaintiff-Bank; (vii) that the view taken by the learned single Judge that Execution Case No. 05/1996 was non est and invalid in law is not a correct view inasmuch as the language of the decree dated 21.04.1995 clearly states that the defendants would be liable for the dues determined by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decree made absolute in terms of the compromise, and whether any rule or Order 34, Code of Civil Procedure, applies or not, the order making the decree absolute amounts to a final decree. . . . . . 15. Order 34, Rule 5, Civil P.C. contemplates the passing of a final decree in certain contingencies but it is attracted only where a preliminary decree has been passed under Rule 4. Therefore where only a money decree has been passed initially a final decree under R.5 is not necessary although the decree may authorize the decree-holder to realize the decretal amount by sale of the judgment-debtor s property. Where, however, the property is charged with the payment of the decretal amount the proper mode of realizing the decretal amount is to obtain a decree absolute for sale. We have thus to construe the decree in the present case to find out whether it is a decree to which Rule 5 would be attracted. 17. The compromise which resulted in the decree being passed sets out that a decree for recovery of money by instalments be passed. There is no bar to a decree under Order 34, Rule 4, Civil P.C.being passed in terms of a compromise extending the period allowed for payment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree which could be executed. This contention has become possible because of the laxity which prevails in the lower Courts in drawing up decrees in mortgage suits. In the present case the preliminary decree was drawn up in the proper form provided by the Code of Civil Procedure. Under R. 5 of O.34, when such payment as is directed by the preliminary decree is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold. And when an order making the decree absolute is made, the final decree has to be drawn up. The question that now arises is whether, at this distance of time, nearly fifteen years after the decree, and twelve years after the order making the decree absolute was made, the execution can go on or not. Having regard to the terms of the preliminary decree which has been made absolute, we could only attribute the omission to have a final decree drawn up to a misapprehension on the part of the Court, as well as the parties concerned, as to the necessity of having a final decree formally drawn up. The parties seem to have gone on all the years on the footing that the preli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordings of the decree quoted above shows that it is a personal decree against all the defendants/judgment-debtors. Respondent No. 4 was defendant No. 4, so it is a money decree against defendant No. 4 as well. It is also a mortgage decree against the mortgagor, namely - defendant No. 2 only. The decree specifically mentions that a money decree is being passed for recovery of ₹ 33,705/22 with costs and the defendants shall pay interest @ 7% per annum from the date of the institution of the suit till its realisation. There is also a decree passed in favour of the Bank entitling it to sell the shop in case decretal amount is not paid within three months from the date of the decree and the decree specifically mentions that it will be deemed to be a personal decree against all the defendants (respondents). Only qua defendant No. 3 it can be executed only to the extent the mother inherited the estate of her son Shri Ajay Kishan Mehta. It is thus clear from the decree that it is a money decree against all the defendants (respondents) and a mortgage decree only against defendant No. 2 (respondent No. 2) so far as the shop is concerned. The decree does not put any fetter on the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Madras High Court in the case of (Machullathil) Chandukutty Nayar v. Kuruvathancheri Keezana Narayana Nayar AIR 1925 Mad. 1083, and another judgment of the Madras High Court in the case of Sivan Pillai v. Anbayyan 1976 I The Madras Law Journal Reports 385, paragraphs 4, 5, 6 and 9 of the judgment of the Hon ble Madras High Court in the case of Sivan Pillai (supra) are quoted hereunder:- 4. Before I deal with this question, I may straightway mention certain admitted and well-settled principles. Not merely a suit on a mortgage, but also a partition suit as well as a suit for dissolution of partnership and accounts involve the passing of a preliminary decree in the first instance and thereafter a final decree. Another principle that has been settled is that an application for passing a final decree in the suits mentioned above is not an application in execution of the decree; but it is only an application in a pending suit. Thus, it is clear that the passing of a preliminary decree, does not terminate the suit and notwithstanding the preliminary decree, the suit is pending and the suit is terminated or comes to an end only by the passing of the final decree. A perusal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the old Limitation Act or Article 137 of the new Limitation Act will apply to such an application though it does not appear that a particular feature peculiar to suits of this nature has been considered in the past. As I pointed out already, whether it is a suit for partition or a suit for dissolution of partnership and accounts or a suit on a mortgage, the suit does not terminate on the passing of the preliminary decree, but terminates only on the passing of the final decree. In a suit on a mortgage, after the passing of the preliminary decree, if the decree-holder-plaintiff does not apply for the passing of final decree within the period prescribed by Article 181 of the old Limitation Act or Article 137 of the new Limitation Act and on that ground the said application is dismissed as barred by limitation, what happens to the pending suit itself does not appear to have been considered so far. I gave an opportunity to counsel on both sides to draw my attention to any decision which has considered this aspect to the matter; but the learned counsel on both sides represented to me that they were not able to come across any decision which has considered this question If the analogy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time prescribed by law, either suo motu or on the application of the judgment-debtor. As a matter of fact, once the application made by a decree-holder for passing a final decree is dismissed on the ground that it is barred by limitation, we are left with a peculiar and nebulous position of the suit being still pending and the preliminary decree already passed not having been cancelled; but at the same time, the decree-holder in the suit not being able to realise the fruits of the decree which he obtained under the preliminary decree. I may also mention in this context that even though Order 34, rule 2 (1) read with rule 4 (1), Civil Procedure Code contemplates a Court fixing a date within 6 months before which the amount determined by the Court or declared by the Court should be paid by the mortgagor, at every stage, there is provision in that Order itself for extending the time so fixed. As a matter of fact, even in a case where a sale has already been ordered and has been held, there is a provision for payment of the amount due by the mortgagor before the confirmation of the sale. All these may indicate that the judgment-debtor has an opportunity of paying the amount not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es where the defendant-mortgagee can ask for a final decree for sale. I do not see therefore any substance in the argument based on the possibility of payment at any time. This may be no doubt very inconvenient. But the Legislature has not provided that the suit may be terminated if neither the mortgagor nor the mortgagee obtained a final decree. The Privy Council has ruled that in a case of a preliminary decree for partition the suit cannot afterwards be dismissed for non-prosecution and must be kept pending. The same result may follow in cases of redemption suits where after a preliminary decree, no action is taken by the parties. It may well be that as the rights of the parties are declared by the preliminary decree, the suits cannot be dismissed for non-prosecution. Whatever that may be, so long as the suit is pending, the mortgagor has the right expressly given to him under rule 7(2) and under rule 8(1) of order 34, civil procedure code. The whole scheme of order 34, civil procedure code, is to give the mortgagor an opportunity of getting the time fixed in the preliminary decree for payment of the amount extended. In case of suits by the mortgagee for foreclosure or sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... racted in extenso from the judgment of Somayya, J., only for the purpose of showing the scope of the various rules contained in Order 34 as well as for pointing out that once a preliminary decree is passed, the application for passing a final decree is an application only in a pending suit and the Code itself has not provided for the dismissal of that suit after the passing of the preliminary decree on the ground that the decree-holder had not applied for a final decree. The general question, when a preliminary decree has been passed, the suit is still pending and there is no provision in the Code of Civil Procedure for dismissing the suit after the preliminary decree on the ground that the decree - holder has not applied for the passing of the final decree, whether there is any justification at all for applying any Article prescribing a particular period of limitation in the Limitation Act, to an application for passing a final decree, since the failure to apply for the passing of the final decree within the time prescribed by the Article does not terminate the suit, but only produces the anomalous situation of there being a fruitless preliminary decree and the suit itself pending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e general principle is that no litigant should suffer as a consequence of the failure of the Court or the mistake committed by the Court. Secondly, it would have certainly been open to the appellant herein to apply for amendment of the decree to the trial Court, so that the decree could be made in conformity with the requirements of Order 34 as well as Form 5-A already referred to. It is conceded that for applying for amendment of the decree, there is no period of limitation whatever. Therefore if the appellant had first applied for an amendment of the decree and had got the decree amended and thereafter, on default committed by the respondents herein to pay the amount within the date fixed by the amended decree, made the application for passing the final decree, it could not be said that the present application filed by the appellant herein was barred by limitation. These considerations also will support the view taken by the Allahabad High Court already referred to and therefore, looked at from any point of view, the application filed by the appellant herein for passing a final decree for the sale of the property cannot be said to by barred by limitation. SUBMISSIONS ON BE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cutable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to S. 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree. 22. Learned counsel also relied upon another judgment of the Hon ble Apex Court in the case of Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande AIR 1995 SC 1211, paragraph 12 of which is as under:- 12. As to Maksudans case (AIR 1983 Patna 105) (supra), we state that it had not been correctly decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure akin to execution of decrees under the Code of Civil Procedure has been permitted to be invoked. But one cannot lose sight of the fact that there is no decree or order of a civil court when we are dealing with applications under Section 31 of the Act. The legal fiction at best refers to a procedure to be followed. It does not mean that a decree or order of a civil court is being executed, which is a sine qua non for invoking Article 136. The proposition set out in the case of Gujarat State Financial Corporation (supra) found support in M/s. Everest Industrial Corporation and Others v. Gujarat State Financial Corporation 1987(3) SCC 597. Again in Maganlal etc. v. Jaiswal Industries Neemach Ors. 1989 (3) SCR 696 this court noticed that an order under Section 32 is not a decree stricto sensu as defined in Section 2(2) of the Code of Civil Procedure, the financial Corporation could not be said to be a decree holder. This makes it clear that while dealing with an application under Sections 31 and 32 of the Act there is no decree or order of a civil court being executed. It was only on the basis of a legal fiction that the proceedings under Section 31 are treated as akin to executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome barred by limitation Learned counsel, therefore, defended the judgment of the learned single Judge and submits that the Letters Patent appeal has no merit in the facts and circumstances of the case. CONSIDERATION 25. We have gone through the materials available on the record and considered the rival submissions advanced at the Bar. At this stage, we are not called upon to examine those issues which were raised on behalf of the judgment debtors - respondents before the learned single Judge but were rejected such as the plea of res judicata and nullity of decree due to death of judgment debtor no. 3. Both the sides have centered and concentrated their arguments on the issue of real construction of the decree dated 21.04.1995, therefore, we would first take note of the terminology of the decree in question. It appears from Annexure-1 to the Writ Petition that it is clearly written at the top DECREE IN ORIGINAL SUIT under Order XX Rules 6 and 7 of the Code of Civil Procedure in form Schedule XLII - High Court (J) 17[Old C.P.20] after reiterating the relevant statements made in the plaint as to the cause of action, value of the suit, jurisdiction and then the reliefs pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction there from of the expenses of the sale) be paid into court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same. (2) The court may, on good cause shown and upon terms to be fixed by the court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment 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. (3) Power to decree sale in foreclosure suit-In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the court may at the instance of any party to the suit or of any other person inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt within the manner provided in sub-rule (1) of rule 4. 6. Recovery of balance due on mortgage in Suit for sale.- Where the net proceeds of any sale held under rule 5 are found insufficient to pay the amount due to the plaintiff, the court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. 27. Form No. 5A under Appendix D of the Code of Civil Procedure specifically provides the language in which a preliminary decree for sale under Order 34 Rule 4 - (When the Court Declares the amount due) is to be drawn. It would be just and proper to take note of the complete Form 5A under Appendix D of the Code of Civil Procedure as under:- No. 5A PRELIMINARY DECREE FOR SALE (Order XXXIV, rule 4.-When the Court declares the amount due.) (Title) This suit coming on this ____ day, etc.; It is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this ____ day ofis the sum of Rs. ____ for principal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit, and, such costs, charges and expenses as may be payable under rule 10, together with such subsequent interest as may be payable under rule 11, of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same. 5. And it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendant for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit. 28. Apparently the language of a simple money decree as provided under Order XX Rules 6 7 of the Code of Civil Procedure an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le money decree has been rendered and still valid may be deprived of the fruits of the said judgment for no fault on his part. 29. In the present case, what has happened is crystal clear; the mortgage suit was decreed but the decree was not drawn correctly, at this stage, the learned single Judge despite having recorded a finding that the decree is not properly worded came to a conclusion that the plaintiff Bank having not filed an application for preparation of a final decree in terms of Order 34 Rule 5 C.P.C. within a period of three years from the date of expiry of 30 days which was prescribed to the defendants for payment, an application for final decree became barred by law of limitation in terms of Article 137 of the Limitation Act, 1963. To me, it appears that there is no question of applying the law of limitation for preparation of a final decree because the plaintiff Bank was not given a preliminary mortgage decree in terms of Order 34 Rule 4 read with Form 5A of Appendix D of the Code of Civil Procedure and if the Bank was not given this opportunity to file an application for preparation of a final decree, there was no fault on the part of the Bank in not applying fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary party. 32. In the case of Sivan Pillai (supra), we have noticed that the learned court rejected the plea of limitation taking note of the judgment of the Hon ble Allahabad High Court in Qazi Ghulam Amir v. Mt. Masuda Khatun AIR 1943 All. 321. The learned Court noted, In that case, a preliminary decree fixed neither the amount due nor the date within which it should be paid. Under those circumstances, the question that arose for consideration was whether the application for passing a final decree can be said to have been barred by limitation under Article 181 of the Limitation Act, 1908. The Allahabad High Court pointed out that in the absence of a date fixed for payment of the amount, it could not be said that there had been a default in the payment which was a condition precedent for the accrual of a right to apply for final decree, vide rules 4 and 5 of Order 34 and paragraph 3 of Form No. 5-A, Appendix D to First Schedule of the Code. The Hon ble Madras High Court took a view in paragraph 9, as quoted above, where it is held, If the Court fails to discharge its duty, the general principle is that no litigant should suffer as a consequence of the failure of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel representing the respondents saying that it is a preliminary mortgage decree, hence, is neither executable nor enforceable in law is not fit to be accepted for the reasons discussed here-in-above. At first instance we do not agree that Annexure- 1 to the Writ Application is a preliminary mortgage decree. The learned single Judge has rightly come to a conclusion that this principle cannot be applied with its full vigour in the present case though it may not be executed under the provisions of the Code of Civil Procedure but a preliminary mortgage decree if subsisting on the date of coming into force of Section 31A of the DRT Act would be covered under the definition of debt under Section 2(g) and within the meaning of decree and order under Section 31A of the DRT Act, 1993. To that extent we approve the view taken by the learned single judge. 35. We have come to the conclusion that the decree, as contained in Annexure-1 which was issued to the plaintiff Bank, was not in prescribed Form 5A as per the First Schedule of Appendix D to the Code of Civil Procedure and, therefore, the plaintiff Bank was not at fault in not applying for a final decree for sale of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding of the learned single Judge that because Section 31A was introduced or amended with effect from 01.07.2000 and the provisions of the Limitation Act apply in respect of the application under Section 31A, therefore, a legally enforceable decree could have been enforced by filing an application under Section 31A only within a period of three years, that is, by presenting the same on or before 17.01.2003 loses its significance. The decree as contained in Annexure- 1 is in the form of a decree in original suit, hence, when an application under Section 31A of the DRT Act was presented, a formal certificate of recovery has been issued only in terms of the said decree and, therefore, the Debts Recovery Tribunal, Patna has rightly exercised its jurisdiction to entertain the application under Section 31A moved on behalf of the Bank. 38. The certificate has to be executed just like execution of a money decree in accordance with the provisions and procedures of law. We are also conscious of the fact that the plaintiff Bank is the custodian of public money, loan in the present case was disbursed in the year 1983, the title mortgage suit was filed in the year 1987 and the decree wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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