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Balu Versus Dhanam and three others

1999 (9) TMI 973 - MADHYA PRADESH HIGH COURT

S.A. No. 1828 of 1987 - Dated:- 9-9-1999 - MR. A. Raman, J. For Appellant/Petitioner/Plaintiff: M/s. Pushpa Sathyanarayanan, for Mr. T.R. Rajaraman, Adv, For Respondents/Defendant: Mr. S. Parthasarathy, for Mr. M.S. Krishnan, Adv. ORDER A. Raman, J. 1. The facts of this case lie in a narrow compass. 2. The subject matter of the hypotheca belonged to Dhanam. She executed a mortgage in favour of Balu Chettiar, and borrowed certain amounts. Balu Chettiar assigned the mortgage in favour of one Kadap .....

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of her having sold the property in favour of Ramaswamy, she pursued the matter by filing application in I.A. No. 99 of 1979 for passing of final decree pursuant to the preliminary decree obtained by her and a final decree was passed. At that time, Ramaswamy filed E.P.NO. 430 of 1980 straight away. The right of Ramasamy, the subsequent purchaser to file the E.P. was questioned by stating that he was not a party to either the original suit or to the final decree proceedings and there is no decree .....

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i and Kadappa Chettiar as respondent. The said application was contested by the respondents. But, over-ruling the objections, the District Munsif ordered Ramaswamy to be impleaded in the final decree proceedings. It was after that Ramaswamy filed an application in I.A. No. 594 of 1986 for passing of final decree, impleading Balu Chettiar, Sambandamurthi and Kadappa Chettiar as the respondents in the said application. To the said application, the very same objections were raised by the respondent .....

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cannot be two final decrees in a mortgage suit. I am not persuaded to accept this argument Order 34 of the Code which relates to mortgage does not prohibit the passing of more man one final decree. Order 31, Rule 7 provides for passing of preliminary decree while Order 31, Rule 8 of the Code provides for passing of final decree in redemption. Admittedly, as on date, the defendants viz., the mortgagees have not complied with the provisions of the preliminary decree. The documents of title have n .....

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The decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication has been completely disposed of. But here, though already a final decree has been passed, the complete disposal of the suit or and adjudication had not taken place. Therefore, the contention of the learned counsel for the appellant that there cannot be two final decrees is without merit. 4. Learned counsel further contended that the order of the co .....

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"It is urged that when the revision petitioner is a purchaser, his interest by way of sale ought to have been recognised. I am unable to agree. The proper procedure for the revision petitioners was to have him impleaded as a party to the final decree proceedings. Not having done so, there is no question of recognising his interest by virtue of the sale. Certainly if it is permissible in law, it is open to the petitioner to seek an amendment of the final decree on the basis of the present sa .....

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dustan Petroleum Corporation Ltd. & another v. K.M. Yakub (Died) & others, 1996 (2) L.W. 817. The Apex Court has held as follows: "The principle of res judicata applies also as between two stages in the same litigation to this extent that a court whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceeding." To the same effect is the decisio .....

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