1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. Civil First Appeal No.183/1993 (Jameel Ahmad & Another Versus The State Bank of India) Date of Judgment :: 3rd March, 2009 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. M.M. Ranjan) for the appellants with ) Mr. O.P. Mishra) Mr. Anil Sharma for Mr. Sudhir Gupta for the respondent BY THE COURT: Heard learned counsel for the parties. 2. The defendant-appellants have preferred this regular first appeal under Section 96 of the Code of Civil Procedure against the impugned judgment and decree dated 28th August, 1993 passed by the Additional District Judge No.5, Jaipur City, Jaipur in Civil Suit No. 256/1985, whereby the trial court passed a final decree in favour of the plaintiff and against defendants. 3. Briefly stated the facts of the case are that defendant-appellants took a loan of Rs. 1,87,000/- from plaintiff-respondent Bank to purchase a bus. The payment of loan amount was not paid in time, therefore, the plaintiff 2 filed a suit for recovery and trial court vide its judgment and decree dated 16th November, 1992 passed a preliminary decree decreeing the suit of the plaintiff for a sum of Rs. 2,63,199.16 paise with interest @ 12 ½ % from the date of filing of the suit till the date of realization. It was also directed that payment will be made within a period of three months, failing which the plaintiff will be entitled to get a final decree for recovery of the amount after selling the mortgage immovable property and hypothecated bus. 4. The defendants paid a sum of Rs. 5,000/- on 1st December, 1992 and did not pay the remaining decretal amount. In these circumstances, the plaintiff filed an application under Order 34 Rule 5 readwith Section 151 CPC on 2nd April, 1993 to pass a final decree. The defendants / judgment debtor filed an application under Section 151 CPC to the effect that they are not earning sufficient amount from the bus, therefore, they are unable to make the payment of the decretal amount at a time, therefore, an order be passed to pay the decretal amount in installments. The application of defendants was contested by plaintiff contending that there is no provision 3 for passing any order of installment as it is a a case of mortgage property. The trial court, after considering all the facts and circumstances of the case, passed a final decree in favour of the plaintiff. 5. The learned counsel for the appellants contended that appellants are poor persons and they are unable to make the payment of decretal amount at a time, therefore, decretal amount may be recovered by passing an order of installments. The learned counsel for the respondent contended that the loan was advanced against hypothecation of bus as well as mortgaged property, as described in para 5 of the plaint and in such matters, there is no provision for passing any order of installments. 6. I have considered the submissions of learned counsel for the parties. 7. The undisputed facts in the present case are that a preliminary decree of a sum of Rs. 2,63,199.16 paise was passed by the trial court vide decree dated 16th November, 1992 in favour of the plaintiff. The defendants paid only a sum of Rs. 5,000/- and did not pay the remaining decretal amount within a period of three months granted by the trial court. The 4 loan was advanced against security and on hypothecation basis. The only plea of the defendants before the trial court was to pass an order for payment of decretal amount in installments. 8. It is an admitted fact in between both the parties that defendants did not prefer any appeal challenging the preliminary decree dated 16th November, 1992. 9. The scope to challenge the final decree is very limited. If there is any variance in between the preliminary decree and final decree, that can be allowed to be challenged. The learned counsel for the appellants is unable to point out any variance in between preliminary decree and final decree. When preliminary decree has not been challenged in the present case, then no ground is now available to the learned counsel for the appellants to challenge the present final decree. The learned trial court was fully justified in passing the final decree under Order 34 Rule 5 CPC and I do not find any illegality, perversity or jurisdictional error in the impugned decree passed by the trial court so as to interfere with the same. 5 10. In view of above, I do not find any force in this appeal and the same is, accordingly, dismissed with no order as to costs. (NARENDRA KUMAR JAIN),J. DK