IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5803 of 2008 Date of Decision : November 20, 2008 Hans Raj ....Petitioner Versus Boor Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Surinder Garg, Advocate for the petitioner. Mr. Dilraj Brar, Advocate for respondent No. 1. T.P.S. MANN, J. One of the judgment debtors has filed the present revision under Article 227 of the Constitution of India so as to challenge the order dated 16.8.2008 passed by the executing Court directing the police to provide necessary help to the decree holder to obtain possession of the property in question. Order passed by the executing Court on 27.9.2008 issuing warrants of possession has also been challenged. Boor Singh-decree holder filed a suit for possession through redemption on 21.11.1996, which was decreed on 7.10.1997 and a preliminary decree was passed against the petitioner and others. The said decree was upheld by the first appellate Court on 19.10.2000 and thereafter by this Court in a second appeal, i.e. R.S.A. No. 285 of 2001 on 23.2.2001. After complying with the directions regarding deposit of the requisite Civil Revision No. 5803 of 2008 -2- amount of Rs. 27,800/-, the decree holder filed an application for passing of final decree. The petitioner and other judgment debtors, who were in possession of the property in question, objected to the same on the ground that the decree had not been drafted and prepared in accordance with the provisions of law and that the application was also not filed on the prescribed performa and within the prescribed period. Their objections were turned down on 7.12.2001 by learned Additional Civil Judge (Senior Division), Faridkot. The application for passing of the final decree was allowed and warrants of possession issued against the judgment debtors. This order was challenged by the present petitioner by filing an appeal, which was dismissed by learned Additional District Judge, Faridkot on 13.2.2003. Still not satisfied with the same, the petitioner filed R.S.A. No. 1775 of 2003, which he withdrew on 6.8.2007 with liberty to approach the trial Court to frame the final decree. The petitioner did file an application dated 24.3.2008 for passing of final decree which was objected to by the decree holder by filing reply dated 26.4.2008 wherein it was submitted that vide order dated 7.12.2001, learned Additional Civil Judge (Senior Division), Faridkot had already passed the final decree and only the formality of preparation of decree sheet remained. That did not affect the merits of the case nor also the jurisdiction of the Court to issue warrants of possession. An application was, thereafter, filed by the decree holder for providing police help on the ground that the bailiff had reported that possession could not be delivered without the same. After going through Civil Revision No. 5803 of 2008 -3- the evidence of the bailiff and the decree holder, learned Civil Judge (Junior Division), Faridkot passed the impugned order dated 16.8.2008 ordering for police help to the decree holder for execution of the warrants of possession. Learned counsel for the petitioner submitted that only preliminary decree had been passed for redemption of the suit property but no final decree sheet had been prepared. An application filed by the petitioner before the learned trial Court for passing the final decree was still pending and unless and until the final decree is passed, warrants of possession could not have been issued. Learned counsel for Boor Singh-decree holder/respondent No. 1 submitted that the preliminary decree was passed as far back as on 7.10.1997, which was upheld right upto this Court and, thereafter, application for passing of final decree was filed, which was allowed by learned Additional Civil Judge (Senior Division), Faridkot on 7.12.2001 and resultantly, warrants of possession were issued against the judgment debtors. The said order of passing of final decree was challenged by the petitioner by filing an appeal which was dismissed by learned Additional District Judge, Faridkot on 13.2.2003 and even R.SA. No. 1775 of 2003 filed by the petitioner was withdrawn by him on 6.8.2007. Though the petitioner had sought liberty from this Court to approach the trial Court to frame a decree yet for all intents and .purposes, a final decree was earlier passed by the trial Court and only the formal decree sheet had not been prepared. This would not have affected the merits of the case or the Civil Revision No. 5803 of 2008 -4- jurisdiction of the lower Court to issue the warrants of possession in favour of the decree holder and providing of police help to him. Order XXXIV of the Code of Civil Procedure, 1908 deals with with the procedure in respect of suits relating to mortgages of immovable property. Rule 7 thereunder provides for passing of a preliminary decree in a suit for redemption, in the event of plaintiff succeeding. Once the plaintiff pays into Court the amount so found or declared due, the defendant could be asked to deliver up to the plaintiff, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the plaintiff at his cost, free from the mortgage and from all encumbrances created by the defendant or any person claiming under him and shall also, if necessary, put the plaintiff in possession of the property. The law does not require passing of final decree in a suit for redemption before ordering the defendant to re-transfer the mortgaged property or ordering him to put the plaintiff in possession of the property. In the event of the plaintiff not paying the amount found or declared due under or by the preliminary decree on or before the date so fixed or the plaintiff fails to pay, within such time as fixed by the Court, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant becomes entitled to apply for a final decree. Even before passing of a final decree in a redemption suit so as as to debar the plaintiff from all rights to redeem the mortgaged property, if the plaintiff makes payment into Court of all amounts due from him under sub- rule (1) of Rule 7, the Court shall, on an application made by the plaintiff in Civil Revision No. 5803 of 2008 -5- this behalf, pass a final decree so as to order the defendant to deliver up the documents referred to in the preliminary decree and if necessary, to re- transfer the mortgaged property and also to put the plaintiff in possession of the same. The procedure regarding passing of final decree in redemption suit is contained in Rule 8. There is no denial of the fact that after the passing of final decree, Boor Singh-decree holder complied with the same by depositing the requisite amount of Rs. 27,800/- and, accordingly, prayed for possession of the house. In such a situation, there was no requirement of passing of a final decree. On the deposit of the amount due, learned lower Court was competent to direct the issuance of warrants of possession of the house in question in favour of the decree holder. The petitioner, who is one of the judgment debtors, is relying upon the application filed by him before the learned lower Court and, that too, after withdrawing his second appeal from this Court, wherein he has prayed to the lower Court to pass a final decree. To my mind, the petitioner is wrongly placing reliance on the provisions of Order XXXIV Rule 8 as it comes into operation only in the event of the plaintiff not making the payment of all amounts due, as a result of which the defendant could debar him from the right to redeem the mortgaged property by asking for passing final decree. The case of the decree holder was clearly covered by Rule 7 (1), which envisages issuance of directions to the defendant to deliver up to Civil Revision No. 5803 of 2008 -6- the plaintiff all documents in his possession or power relating to mortgaged property, besides re-transferring the property to the plaintiff and if necessary, to put the plaintiff in possession of the property. Even if, the argument on behalf of the petitioner is accepted that no final decree had been framed by the trial Court for any reason, one can refer to the order passed by learned Additional Civil Judge (Senior Division), Faridkot on 7.12.2001 whereby application filed by the decree holder for passing the decree finally was allowed. Even after withdrawing his second appeal on 6.8.2007, the petitioner filed an application before the lower Court for passing of a final decree and while objecting to the same, the decree holder had clearly stated that a final decree had been passed on 7.12.2001 and, only a formal decree sheet had not been prepared. Non- preparation of the formal final decree could not have affected the merits of the case or the jurisdiction of the lower Court in issuing warrants of possession, besides, providing police help to the decree holder. For the reasons mentioned above, the impugned orders passed by the lower Court do not suffer from any illegality or infirmity. The revision is, accordingly, dismissed. ( T.P.S. MANN ) November 20, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO