IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.8308 of 2010 Date of Decision: October 19, 2011. State Bank of India, Ambala City. ...... PETITIONER. Versus Rainbow Tailors and others. ...... RESPONDENTS. CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. S.C. Pathela, Advocate for the petitioner. None for the respondents. ***** RAM CHAND GUPTA, J.(Oral) Petitioner has invoked supervisory jurisdiction of this Court under Article 227 of the Constitution of India for setting aside impugned order dated 13.09.2010 passed by learned Civil Judge (Junior Division) Ambala vide which the execution application filed by the petitioner/Bank under Order 21 Rule 11 of the Code of Civil Procedure (for short ‘the Code’), was dismissed. I have heard learned counsel for the petitioner and have gone through the whole record including the impugned order passed by learned executing court. CR No.8308 of 2010 Briefly stated, petitioner/plaintiff filed a suit for recovery against the respondents/defendants which was decreed vide judgment and decree dated 22.08.2003, operative part of which is as follows:- “ ISSUE NO.10 (Relief) 14. In view of the foregoing discussion on issue no.1, a preliminary decree is passed in favour of plaintiff bank and against the defendants No.1 and 2 are held liable to repay the suit amount along with pendente-lite and future interest at the rate of 6% per annum within a period of one month failing which plaintiff bank shall be entitled to recover the amount by sale of hypothecated goods and mortgaged property. However, it is clarified that LRs of, deceased Smt. Kartari Devi are not personally or severally liable to pay any loan amount of defendants. Decree sheet be drawn-up. File after due compliance be consigned to record room.” The decree has become final and hence, the present petitioner/decree-holder filed the execution petition. However, the same was dismissed by the executing court vide impugned order by observing that preliminary decree cannot be executed as final decree is yet to be drawn. It has been vehemently contended by learned counsel for the petitioner/decree-holder that afore-mentioned decree passed by the learned trial Court is a composite decree and that there was no need of getting any final decree passed and that the decree is executable as such. He has also placed reliance upon a judgment rendered by this Court in Sadhu Ram Vs. State Bank of India 1994 ISJ (Banking) 434 in which on the similar facts, it was observed as under:- “6. In a suit filed under Order 34 of the Code, the Court on decreeing the suit, is to pass preliminary decree to the effect mentioned in clause (a), (b) and (c) (i) of sub-rule (1) of 2 CR No.8308 of 2010 Rule 2 as referred to in Rule 4 of Order 34 of the Code. The trial Court is further required to state that in case of default in paying the amount as mentioned therein i.e. within the time given to the defendant to make the payment, plaintiff shall be entitled to apply for the final decree directing the mortgaged property or a sufficient part thereof be sold that the proceeds of the sale (after deducting therefrom the expenses of the sale) be applied in payment of what is declared due to the plaintiff as aforesaid, together with subsequent interest and subsequent cost and that the balance, if any, be paid to the defendant or other persons entitled to receive the same. In case the defendant fails to pay the amount within the time given in the preliminary decree, plaintiff is entitled to make an application to the Court under sub-rule (3) of Rule 5 of Order 34 of the Code for passing of final decree directing that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of Rule 4 of Order 34 of the Code. 7. As already noticed, in the decree, the trial Court instead of directing that on failure of the defendant to pay the amount within the period given by the Court, plaintiff would be entitled to apply for final decree, directed that ‘the defendants are given a period of six months to pay the decretal amount failing which their property standing mortgaged with the plaintiff will be sold for realisation of the decretal amount. If the sale proceeds fell short of decretal amount, the same can be recovered from the assets of the defendants.’ Direction for sale of property which was required to be given on a formal application to be made by the plaintiff, the Court while passing the decree, gave these very directions and, therefore, it was not necessary for the plaintiff to apply afresh for drawing up of a final decree. Decree passed in the suit was a composite one. The decree directed that the property be sold and the money so realized be applied for payment to the plaintiff. The intention of the Court passing the decree was not left in doubt even though 3 CR No.8308 of 2010 the precise language used by the Code was not employed. The judgment relied upon by the counsel for the petitioner at the time of motion hearing, has no application to the facts of the present case in as much as in that case only a preliminary decree had been passed and at the time of preliminary decree, the Court had not directed that in case of default of payment within the period prescribed under the decree, the property would be put to sale for realisation of the amount. It was in these circumstances that the decree was a preliminary one and the plaintiff was required in terms of Order 34 of the Code to apply for drawing up of a final decree.” On the same point, reliance has been placed upon another judgment rendered by this Court in Gurdial Singh Vs. Oriental Bank of Commerce 1999(2) Punjab Law Reporter 316. As is clear from the afore-mentioned decree passed by learned trial Court, respondents/defendants were held liable to pay the suit amount along with interest within a period of one month, failing which the decree- holder was held entitled to recover the same by sale of hypothecated goods and mortgaged property. In view of these facts, there was no need of getting final decree passed before filing the execution petition for recovery of decretal amount by sale of hypothecated goods and mortgaged property. The present execution petition was filed by petitioner/decree-holder for effecting the recovery of decretal amount by sale of hypothecated goods and mortgaged property. Hence, learned executing court has committed illegality in dismissing the execution petition filed by the petitioner/decree- holder on the ground that the same is not maintainable as the final decree has not been drawn. 4 CR No.8308 of 2010 Hence, in view of these facts, present revision petition is accepted and the impugned order is, hereby, set aside. Executing Court is directed to proceed further with the execution as per law. Petitioner through counsel is directed to appear before the executing court on 28.11.2011 for further proceedings in accordance with law. ( RAM CHAND GUPTA ) October 19, 2011. JUDGE Sachin M. 5