RSA No.1573 of 2010 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on August 06,2010 Harjinder Kaur --Appellant vs. Sukhwinder Kaur -- Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.R.V.S.Chug,Advocate, for the appellant Mr.Navdeep Monga,Advocate, for the respondent Rakesh Kumar Jain, J, The defendant is in second appeal against the judgment and decree of both the Courts below whereby a composite decree has been passed in a suit filed by the plaintiff for possession by way of redemption of mortgaged house against payment of Rs.65,000/-. Shorn of unnecessary details, the plaintif filed a suit for possession by way of redemption in respect of mortgaged house on payment of Rs.65,000/- which has been decreed by the trial Court to the effect that the plaintiff is entitled to redemption of the house on payment of Rs.65,000/- to the defendant. A composite decree was passed in favour of RSA No.1573 of 2010 (O&M) 2 the plaintiff observing therein that if the plaintiff deposits mortgage amount of Rs. 65,000/- within two months, the defendant shall hand over possession of the house to the plaintiff and in case, the defendant fails to hand over vacant possession, it would be open to the plaintiff to aproach the Court to get the possession of the house from the defendant. Aggrieved against the judgment and decree of the trial Court, the defendant had filed first appeal which was dismissed on 16.2.2010 and the composite decree passed by the trial Court was ordered to operate. Still aggrieved, the defendant has come up in second appeal before this Court in which, learned counsel for the appellant has raised a question of law that “Whether it is mandatory to pass preliminary decree before passing the final decree in a suit for redemption of mortgage in terms of the provisions of Order 34 Rule 7 Code of Civil Procedure,1908 (for short, CPC)”. Learned counsel for the appellant has submitted that Order 34 Rule 7 of CPC provides for preparation of preliminary decree in a suit for redemption followed by a final decree in terms of Order 34 Rule 8 of CPC. No doubt, Order 34 Rule 7 of CPC provides for framing of preliminary decree in a suit for redemption, but in this case, a composite decree has been passed by the trial Court against which no objection was filed by the defendant to the effect that preliminary decree should have been passed by the trial Court, rather, judgment and decree of the trial Court has been challenged by the defendant by way of first appeal. The purpose of framing a preliminary decree followed by a final decree is to determine the amount payable by the plaintiff to the defendant but in a decree like the one in hand, there was no requirement of framing of RSA No.1573 of 2010 (O&M) 3 preliminary decree and a final decree rather the Court could have passed a composite decree instead. Learned counsel for the respondent has submitted that though the trial court has not passed any preliminary decree as argued by learned counsel for the appellant and has rather passed a composite decree, but he has failed to show as to what prejudice has been caused to him as a result of passing of the composite decree which was not even assailed on this ground before the first Appellate Court. He has relied upon a decision of this Court in the case of Gurdial Singh Vs.Oriental Bank of Commerce 1999 (2) P.L.R.316 to contend that if the nature of decree is such that it does not call for any further order from the Court before seeking execution, a mere breach of Order 34 Rule 7 of CPC does not render the composite decree a nullity. I have heard both learned counsel for the parties and perused the record with their assistance. Order 34 of CPC provides that in a suit for foreclosure sale and redemption, a preliminary decree and final decree is provided and it is not in dispute that a preliminary decree is not executable unless and untill the final dreee is drawn, but the Court has the jurisdiction to even pass composite decree, if facts and circumstances of the case so requires and if the composite decre is of such a nature that no further order of the Court is required before seeking execution, then mere fact that preliminary decree is not prepared, would not effect the composite decree. In the case of Gurdial Singh (Supra)., the defendant/appellant had advanced a loan to Gurdial Singh, who had mortgaged his land in lieu thereof. The Bank filed a suit which was decreed exparte. The trial Court passed the following RSA No.1573 of 2010 (O&M) 4 decree. “Thus, as a result of above discussion, the suit of the plaintiff succeeds and a decree for recovery of Rs.84,054-50 with cost is passed in favour of the plaintiff and against the defendant. Future interest at the stipulated rate from the date of suit till realisation of the amount is also awarded to the plaintiff. Mortgage decree as prayed for is also passed in favour of the plaintiff in respect of the land described in para 5 of the plaint and in case the defendant fails to repay the decretal amount within three months, final decree as per provisions of Order 34 CPC will be deemed to have been passed in favour of the plaintiff”. In execution of the said decree, Gurdial Singh filed objections on the ground that the execution application has been filed on the basis of preliminary decree as final decree has yet not been drawn and the provisions of Order 34 Rule 5 CPC have not been complied with. The objections were dismissed against which the revision was filed in this Court. This court while dismissing the revision petition filed by Gurdial Singh had held that nature of the decree is such that no further order from the Court was required before seeking execution as it was a composite decree. While dismissing the revision, this Court had relied upon a decision of this Court in the case of Sadhu Ram Vs. State Bank of India, 1994 Important and Selected Judgments (Banking) 434. In the present case, admittedly, the defendant had neither raised any grouse against passing of the composite decree before the first Appellate Court, nor the learned counsel for the defendant could show to this Court as to what prejudice has been caused to him on account of passing of the composite decree. In the case of Nathu Ram Vs.State Bank of India 2000 (1) R.C.R.(Civil) 247, this Court had held as under:- RSA No.1573 of 2010 (O&M) 5 “Another factor is that the learned counsel for the petitioner has also not been able to show as to what prejudice the judgment-debtors have suffered as a result of passing of the above composite decree which have not even assailed. The provisions of the Code of Civil Procedure are intended only to be observed for doing substantial justice between the parties and ensure that ends of justice are not defeated and neither of the parties to the proceedings suffer any prejudice”. In view of the above discussion, I do not find any illegality in the judgment and decree of the Courts below, nor do I find any substantial question of law involved in this appeal and as such, the same is hereby dismissed with costs.. August 06,2010 (Rakesh Kumar Jain) RR Judge