IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT: THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.730 of 1993 Between: Athuluri Rama Venkata Subba Rao and others ..... APPELLANTS AND Syndicate Bank, Darsi, rep. by its Manager and others ..... RESPONDENTS JUDGMENT: Heard the learned counsel on record. This appeal is filed by respondent Nos.1, 3, 4, 5, 6, 8 and 9 in I.A.No.439 of 1989 in O.S.No.36 of 1985 on the file of the Subordinate Judge, Markapur. 2. The first respondent/plaintiff filed I.A.No.439 of 1989 in O.S.No.36 of 1985 aforesaid under Order 34 Rule 5 r/w.151 of the Code of Civil Procedure praying the court to pass final decree in favour of the Syndicate Bank, Darshi, the first respondent herein – petitioner – plaintiff. 3. The learned Subordinate Judge, Markapur after referring the contents of the petition and also the stand taken in the counter having settled the point for consideration at paragraph No.4, recorded reasons at paragraph Nos.5 and 6 and ultimately allowed the petition with costs passing a final decree in terms of preliminary decree in O.S.No.36 of 1985 aforesaid. 4. Aggrieved by the same the present appeal had been preferred. The learned counsel for the appellants would pointed out that the interest granted is excessive and the trial court totally erred in granting such excessive interest most probably thinking that this suit based on equitable mortgage. The learned counsel also pointed out to the specific grounds raised as ground Nos.5 to 17 and would contend that in the light of the facts and circumstances, inasmuch as the final decree proceedings being continuation of the preliminary decree proceedings so far as the interest part is concerned the same can be modified or rectified even in this appeal. The learned counsel also further prays before this court that the full satisfaction memo has been filed by the decree holder and would maintain that it may be that the entire decree amount might have been paid with respect to full satisfaction. But, however, if the interest part is suitably modified in the facts and circumstances, the appellants may be entitled for the said amount or the difference of amount. 5. On the contrary the learned counsel representing the first respondent would contend that this question whether the interest granted is excessive or not cannot be adjudicated at the stage of final decree proceedings. During trial in the original suit the issues had been settled and the preliminary decree was passed. The final decree to be passed in terms of the preliminary decree and hence, such deviation in relation to interest cannot be made at the stage of final decree. Hence, the appeal is liable to be dismissed. The learned counsel also would further submit that the conditional order also had not been complied with. But, however, verifying the certified copy of the memo placed before this court the learned counsel request for further time to get further instructions in this matter. 6. Heard the learned counsel and perused the records. 7. In the facts and circumstances, the following points arises for consideration in this appeal are: 1. Whether the findings recorded by the trial court while passing final decree in accordance with the preliminary decree to be confirmed or to be disturbed in the facts and circumstances of the case ? 2. Whether the interest granted by the trial court to be confirmed or to be modified or to be rectified in the facts and circumstances of the case in this final decree proceedings ? 3. If so, to what relief the parties would be entitled to ? 8. POINT Nos.1 and 2:- For the purpose of convenience these points are being discussed together. At the out set the full satisfaction memo filed on behalf of the decree holder may be referred to and the same reads as hereunder: “It is submitted that since the judgment debtors have paid the entire decreetal amount. Hence, full satisfaction of the decree may kindly be recorded.” 9. It is the case of the first respondent in the appeal and the plaintiff in the original suit aforesaid a decree was made in favour of the plaintiff bank on 25-01-1998 for recovery of Rs.3,02,280-71 Paise with subsequent interest at 12½% per annum from the date of suit till the date of redemption and the future interest will be fixed at the time of passing final decree and a charge was also created over the suit schedule property. The respondents (defendants) did not pay the decretal amount to the petitioner (decree holder) in spite of demands as per the directions of the preliminary decree from the date of filing of the suit till today. Hence, the petitioner (plaintiff) is obliged to file this petition for passing final decree. 10. The said petition was opposed by the contesting respondents (respondent Nos.5 to 7 remained exparte). Respondent No.3 filed counter, Respondent Nos.1, 2, 4, 8 and 9 filed adoption memo, wherein it is stated that the properties against which a first charge is claimed and sought to be sold belong to the firm constituting of defendants 1 to 9. The firm did business in the name of Vijaya Saradhi Rice and Dhall Mill. Since the firm is not made a party to the suit there is no valid executable decree. The firm should have been specifically impleaded as a party to the suit. The plaintiff’s right to a personal decree against the other properties of the partners are barred by time and hence, no such direction to proceed against the other personal assets of the partners can be made at this stage. The right of the plaintiff is limited against the firm assets, so on direction under Order 34 Rule 6 of the Code of Civil Procedure should be granted in this application. The valuation of several items shown in the schedule is not correct. The mill and its machinery accessories along with the site is worth more than 10 lakhs at present market value and the same are not liable to be sold as the firm the owner of it is not properly made as a party to the suit. The interest claimed is excessive. The mill is not in a working condition and losses caused damage to the mill. Therefore, a suit was filed against them. In view of it subsequent interest at 6% may alone be awarded, as the partners are agriculturists by profession. 11. The learned Judge at paragraph No.4 formulated the following point for consideration: Whether the petitioner is entitled for final decree as prayed for ? 12. The preliminary decree reads as hereunder: In the result, the suit is decreed by passing an usual preliminary decree directing the defendants to pay Rs.2,43,026-95 paise with subsequent interst at twelve and half percent per annum from the date of suit till the date of payment at twelve and half percent per annum on Rs.1,40,000/- with proportionate costs to the plaintiff within six months from this date. In default of payment of the said amount, the plaintiff shall be entitled to recover the above said amount from the defendant personally and the plaintiff is further entitled to apply for a final decree directing that the mortgage property or a sufficient part thereof be sold and proceeds of the sale be paid into court and applied in payment of the amount due as per the preliminary decree. The time for redemption is six months. The rest of the suit claim is dismissed with proportionate costs. 13. In essence, in terms of preliminary decree the amount has not been paid. The application was filed for passing of final decree in terms of preliminary decree. The factual controversies which had been put forth in the final decree proceedings need not detain this court any further or any longer for the reason that these aspects cannot be gone into at the stage of final decree proceedings. 14. Several defences, which are being put-forth at the stage of final decree proceedings if at all the appellants are entitled to, the appellants could have agitated all these aspects in the original suit itself. As far as the rectification or the modification of the interest, those aspects also could have been agitated in the original suit and at the stage of final decree proceedings all these questions cannot be reopened again and cannot be re-agitated again. 15. Hence, this court is not inclined to go into the said questions. Further this court had carefully gone through the reasons recorded at paragraph Nos.5 and 6 of the judgment under challenge. This court is thoroughly satisfied that there is no illegality or legal infirmity warranting interference in this appeal in relating to the findings, which had been recorded by the learned Subordinate Judge, Markapur. Hence, the said findings are hereby confirmed. 16. POINT No.3:- In the result, the appeal being devoid of merits. The same shall stand dismissed. There shall be no order as to costs. ___________________ P.S. NARAYANA, J April 15, 2010. Pn THE HON'BLE SRI JUSTICE P.S. NARAYANA APPEAL SUIT No.730 of 1993 April 15, 2010