Karnataka High Court
C Narayanaswamy vs K S Jayavani on 18 July, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JULY 2014
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
REVIEW PETITION NO.1001/2012
BETWEEN:
C.NARAYANASWAMY
S/O.LATE SHANKARAPPA
AGED ABOUT 63 YEARS
R/AT NO.14 (NEW NO.75)
NARAYANAPPA FARM LAYOUT
GEDDALAHALLI
BANGALORE - 560 094.
...PETITIONER
(BY SRI N.SANNEGOWDA, ADV.)
AND:
1. K.S.JAYAVANI
W/O.K.RAJA RAO
D/O.LATE SRINIVASA MURTHY
AGED ABOUT 52 YEARS
R/AT UTTARADHI MATA
FORT - RAYADURGA.
2. K.S.SUDHARSHAN
S/O.LATE SRINIVASA MURTHY
AGED ABOUT 45 YEARS
R/AT NO.26, KRISHNA LAYOUT
DEVARACHIKKANAHALLI
BEGUR HOBLI
BANGALORE SOUTH TALUK.
...RESPONDENTS
(R-1 SERVED)
2
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 OF CPC PRAYING FOR REVIEW THE ORDER DATED
7.12.2010 PASSED IN CRP NO.2929/2003 ON THE FILE OF
THE HON'BLE HIGH COURT OF KARNATAKA, BANGALORE.
THIS PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This review petition is filed under Section 114 r/w. Order 47 of CPC to review the order dated 7.12.2010 passed in C.R.P.No.2929/2003.
2. This petition was filed in the year 2012 on an assurance that the petitioner would be diligent. Notice was ordered to the other side requesting required steps to be taken. As seen from the order dated 22.11.2012, emergent notice was ordered and even interim stay was granted initially for a period of 10 days. Thereafter, for one reason or the other, time is being sought. Respondent No.2 has been served. On the plea that respondent No.1 could not be served, 3 this petition is being adjourned from time to time extending the interim order of stay thereby keeping in abeyance, the finality given to the dispute between the parties by an order dated 7.12.2010. However, at the request of petitioner's counsel, they were permitted to take out notice to respondent No.1 by substituted service. This has also not been done and the petition is posted for orders. In the circumstances, it is desirable to hear whether the grounds in the petition make out a case to admit it. Hence I had requested the learned counsel to urge regarding admission. Learned counsel refers to the grounds in the petition as sufficient to admit the petition.
3. I have perused the petition in which, the grounds urged are:
The trial court decreed the suit of the respondent on 13.12.1976 passing a decree to redeem the mortgage property with a direction to deposit the amount of mortgage. The petitioner's contention is the trial court had declared in unambiguious terms that 4 the decree is a preliminary decree by the Court passing the decree and therefore unless final decree is obtained by the plaintiff, the decree was inexecutable.
The second ground is that even assuming that this Court has rightly observed that in certain circumstances where the mortgage amount was not in dispute, the Court can pass a final decree, there should have been a declaration to this effect. That has not been done and therefore, the impugned decree is unsustainable.
The third ground is that the order dated 7.12.2010 passed by this Court requires to be reviewed as the said order suffers from error apparent on the face of the record in as much as it has failed to consider that unless there is a final decree passed in terms of Order 34 Rule 8 of CPC, the Court has no power to execute the preliminary decree passed in terms of Order 34 rule 7 of CPC. Thus, they seek to review the order passed by this Court on 7.12.2010. 5
4. The grounds urged for reviewing the order are not new grounds but the grounds which were main grounds urged by the petitioner herein, who was respondent in C.R.P.No.2929/2012. I is quiet obvious that these grounds are raised without applying mind to the decision of this Court referred to above. A perusal of the order dated 7.12.2010 would show this Court had formulated the following point for decision:
"Whether in a suit for redemption covered by Order 34 of CPC, a decree could be final decree or should be a preliminary decree in the first instance and then final decree."
5. The moved question raised for decision has been considered analyzing the intent and purpose of Order 34 of CPC, the phraseology of various provisions of Order 34 of CPC, particularly, Rules 4, 7 and 8. Elaborate discussion is made by this Court on the point in paragraphs numbered as m, n, o & p. 6
6. The questions that I had formulated were as follows:
1) In a suit for redemption, what is the nature of decree permissible? Does the provision of Rule 7 of Order 34 CPC compulsorily require preliminary decree to be passed, or is final decree permissible?
2) If the decree for redemption is
mortgage finally adjudicates the
rights of the parties, will it be
executable, or does the provision of Rule 8 of Order 34 CPC require the plaintiff to obtain final decree?
3) Is the decree in question executable without applying for final decree?
7. As there was no direct decision of the Court cited at the bar, I had referred to the decision, which includes a decision of the privy counsel in the case of Mosa Rajayyan vs. Jacob Haris (AIR 1981 Kerala 135) and the case of Subramanayam Chettiar & another vs. Muthaiah Pillai (AIR 1957 Madras 189) wherein, there was an incidental reference to the nature of decree and taking the legal propositions propounded in those 7 decisions including the decision in the case of Sonnakka vs. D.Munekka (AIR 1959 Mysore 39), view is taken that Rule 7 which deals with preliminary decree in redemption suit, the Court may pass a decree in terms of clauses (a), (b) or (c) and it opined that final decree referred to in Rule 7 of Order 34 of CPC is the final decree that could be passed at the instance of defendant and not at the instance of the plaintiff. This opinion was with reference to clause (c) sub-Rule (ii) which reads, "if payment of amount found or declared due under by the preliminary decree is not made on or before the date so fixed, or plaintiff fails to pay within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree."
Therefore, the final decree referred to in Rule 7 was not a final decree to be obtained by the plaintiff but a final decree that could be passed by the Court to prevent the plaintiff who succeeded in obtaining a decree for redemption from utilizing the benefit of 8 decree due to default. Thus, Rule 7 refers to a final decree in a negative sense in which the defendant gets a right to annul the decree of redemption passed in favour of the plaintiff, if the plaintiff commits default in complying with the terms of preliminary decree. This has been distinguished from the final decree used in a normal parlance. In this view, it was held that once the plaintiff obtains a decree for redemption and complies with all the terms of the preliminary decree giving no scope or right to the defendant to apply for final decree as required in Rule 7, such a decree has to be construed and considered as final decree and executable in nature.
8. A firm opinion has been formed by me referring to not only the case laws but the provisions referred to above and as could be seen in para 15, my conclusion is as follows:
"Thus, the reasonable conclusion would be, in the absence of any claim from the defendant as referred to in Clause (a), if the Court finds no dispute on the 9 principal amount secured by mortgage and interest payable thereon as on the date of decree, the Court may proceed to pass a decree as envisaged in Clauses (b) and (c). It will be 'final decree.' Such decree would undoubtedly finally determine the amount payable by the plaintiff under Clauses (b) and (c), the period for such payment is fixed, the plaintiff becomes liable to pay such amount within the time stipulated. On default, defendant may apply for final decree to debar him (plaintiff) from redeeming the mortgage but, plaintiff is not required to apply for final decree."
9. Since, I have already considered the grounds urged against the preliminary decree by elaborate discussion and order, the grounds in this review petition do not merit any acceptance. Besides, no ground as envisaged under Order 47 Rule 1 of CPC is made out to entertain this petition. Hence, the petition is rejected.
Sd/-
JUDGE nas