IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.869 of 2008 MURARI LAL DUBEY Versus SHAILESH KUMAR PANDEY & ORS ----------- 3 3.7.2008 Heard the counsel for the petitioner. The petitioner is aggrieved by an order dated 17.5.2008. It is submitted by the counsel for the petitioner that as a matter of fact when the plaintiffs-decree holders had themselves made prayer for preparation of final decree the view taken by the court below that there was no requirement for preparing preliminary decree is absolutely incorrect. In this context on perusal of the impugned order it becomes absolutely clear that before filing of the mortgage suit an application under section 83 of the Transfer of Property Act vide Misc. case no.25/94 was filed wherein amount due under mortgage was deposited and therefore, the court below had come to a finding in the mortgage suit there was no requirement much less any question of deciding mortgage amount and the interest payable on that amount and on this factual premises the court below had proceeded to pass an order that there was no impediment in - 2 - passing final decree. The court below in this context has also referred to two judgments of the case of Sayeeda Khatoon vs Bibi Sayeeda Tahira Nahid reported in (2001)2 BLJR 1493 and in the case of Krishnan vs Muthu Gounder & others reported in 1997 Madras 57. In the opinion of this court the detailed consideration on facts as noticed in the impugned order which also remain uncontroverted in this civil revision application can not be ignored by this court specially when there is no denial to the basic fact that the entire amount was already paid before institution of the mortgage suit. After this order has been dictated, counsel for the petitioner raised a grievance that the amount which was deposited in the aforementioned Miscellaneous case , has not yet been received in the Execution court. If that be so the counsel for the petitioner is given liberty to approach the court below on this limited point. With the aforesaid observation, this Civil Revision Application is dismissed. shahid (Mihir Kumar Jha, J)