Skip to content


(Firm) Ram Kumar-rameshwar Lal Vs. Prem Sukh Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All857; 166Ind.Cas.231
Appellant(Firm) Ram Kumar-rameshwar Lal
RespondentPrem Sukh Das and ors.
Excerpt:
- .....an attaching decree-holder and arises out of an application made by him for the preparation of a final decree. the appellant had a simple money decree against messrs. ramdeo rang lal. messrs. ramdeo rang lal had a preliminary mortgage decree which they had obtained in suit no. 187 of 1925. the appellant attached it and applied for the preparation of final decree. the lower court has dismissed the application on the ground that he had no locus standi to apply for the preparation of a final decree. 'we think the learned subordinate judge was quite right. the appellant purports to come under order 21, rule 53, civil p.c. it does not apply to the present case. rule 53, order 21, clause (1), applies to the case of a decree which is either for the payment of money or for sale in enforcement.....
Judgment:

1. This is an appeal by an attaching decree-holder and arises out of an application made by him for the preparation of a final decree. The appellant had a simple money decree against Messrs. Ramdeo Rang Lal. Messrs. Ramdeo Rang Lal had a preliminary mortgage decree which they had obtained in Suit No. 187 of 1925. The appellant attached it and applied for the preparation of final decree. The lower Court has dismissed the application on the ground that he had no locus standi to apply for the preparation of a final decree. 'We think the learned Subordinate Judge was quite right. The appellant purports to come under Order 21, Rule 53, Civil P.C. It does not apply to the present case. Rule 53, Order 21, Clause (1), applies to the case of a decree which is either for the payment of money or for sale in enforcement of a mortgage or charge. The preliminary decree does not come under this clause. The preliminary decree which has been attached cannot be regarded as one for the payment of money or for sale in enforcement of a mortgage or charge nor is it capable of execution. The learned Counsel has also relied on Order 22, Rule 10, Civil P.C. Rule 10 lays down:

In other cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

2. The mere attachment of a decree does not amount to an assignment, creation or devolution of any such interest as is mentioned in Clause (1), Rule 10, Order 22, Civil P.C. This clause also does not help the appellant. An application for the preparation of a final decree can be made only under Order 34, Rule 5, Clause (2), Civil P.C., which lays down:

Where such payment is not so made, the Court shall on application made in that behalf by the plaintiff, pass a decree that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with as is mentioned in Rule 4.

3. The appellant has no locus standi to apply under this clause for the preparation of a final decree. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //