1. The Lakshmi Commercial Bank Ltd., filed a suit against M/s American Rubber Mills Co., a partnership concern. Harnem Singh Anand, Sunder Singh Anand, Ajit Singh Anand, Ajit Singh Anand, Bhola Nath Jain etc., for recovery of Rs.48,796,08 with costs and future interest. It prayed for a decree for this amount against the defendants jointly and severally by sale of certain stocks pledged with the plaintiff and by sale of certain properties mortgaged with the plaintiff mentioned in paragraphs 9 and 12 of the plaint. A personal decree was also sought against the defendants jointly and severally for any amount that may be left recoverable after sale of the pledged and mortgaged property. This suit was compromised an this, court passed a compromise decree in favor of the plaintiff and against the defendants on 26-11-1968. Inter alia, the decree passed by this Court reads as under:--
'.............This Court doth pass a preliminary decree under Order Xxxiv, Rule 4 of the Code of Civil Procedure and Doth Order that Sarvashri Harnam Singh Anand, Surinder Singh Anand and Ajit Singh defendants 2 to 4 herein do pay to Lakshmi Commercial Bank Ltd., plaintiff herein the sum of Rs.22,639.89 (Rupees twenty two thousand six hundred thirty nine and eighty nine paise) with proportionate costs incurred by the plaintiff herein in this suit as taxed by the taxing officer of this court and noted in the margin hereof And This Court by and with the consent of the parties concerned Doth Also Order that a sum of Rs.4000/- (Rupees four thousand) have been paid in cash and Rupees 1000/- (Rupees one thousand) through a cheque on 18-9-1968 the balance amount due shall be payable by monthly Installments of Rs.1000/- (one thousand) each commencing from October 1968 And This Court Doth by and with the concent of the parties concerned Further Order that in the event of three defaults consecutive or otherwise in the payment of Installments the balance amount shall become recoverable in lump sum And This Court Doth by and with the consent of the parties concerned Further Order that till the entire amount due form the said defendants to the plaintiff is paid the factory buildings situated on plot No.1/359, Shahdara, Delhi, along with all the machinery, fittings, fixtures, furniture, tools, implements, stores, Chemicals and materials shall remain mortgaged with the plaintiff and in the event of default the plaintiff shall have the right to recover the total amount that may be due by applying to the court for a final decree that the mortgaged property or a sufficient part thereof be sold and for the purpose of such sale of plaintiff shall produce before the court of such officer as it appoints, all documents in its possession or power relating to the mortgaged property; and that the money realised by such sale shall be paid into court and be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable by the said defendants to the plaintiff and that the balance, if any, shall be paid to the said defendants or other persons entitled to receive the same; and that if the money realised by such sale shall not be sufficient for payment in full of the amount due from the said defendants the plaintiff shall be at liberty to apply for a personal decree against the said defendants for the remaining amount, Plot No.9, Punjabi Bagh, Delhi Standing in the name of Shri Sunder Singh Anand and which was equitably mortgaged with the plaintiff shall stand redeemed from mortgage and the title deed of that property shall be returned to Sunder Singh Anand, And This Court Doth Further Order that Sarvshri Bhola Nath Jain and Shiv Kumar Jain defendants Nos.5 and 6 herein do pay to the plaintiff bank herein a sum of Rupees 26,156.19 p. (Rupees twenty six thousand one hundred fifty six and nineteen paise) with interest at the rate of 12 (twelve) per centem per annum on the said sum from 11th March 1968 (the date of institution of the suit) till realisation of the amount together with proportionate costs incurred by the plaintiff bank herein in this suit as taxed by the taxing officer of this court and noted in the margin hereto And This Court Doth Further Order that a sum of Rs.2156.19 p. (Rupees Two thousand one hundred fifty six and nineteen paise) being paid by Shri Shiv Kumar defendant herein through a cheque on 19th September 1968 the balance due shall be payable by monthly Installments of Rupees 1500/- (fifteen hundred) each the first Installment being payable by the 15th of each successive month till the entire amount due from the said defendants is paid And This Court Doth Further Order that the Installment so paid shall be first adjusted towards the stock pledge d with the plaintiff though the said defendants shall also have the right to have the said stock released in four Installments on making payment sin the stock account within eight months from the date of decree; one fourth of the stock to be released on payment of one fourth of the value of the stock pledged And This Court Doth Further Order that in the even of default consecutive or otherwise in the payment of any three Installments the entire balance due from the said defendants shall become payable forthwith in lump sum And This Court Doth Further Order that till the entire amount due from the said defendants to the plaintiff is paid the property measuring 510 square yards at Shahdara, Delhi, registered in the name of defendant No.1, on 29-91957, the property bearing plot No.18 in Friends Colony Shahdara, Delhi registered in the name of defendant No.1, on 28-7-1959 and the pledged goods shall remain mortgaged with the plaintiff and the plaintiff shall have the right to recover the total amount that may be due by applying to the court for a final decree that the pledged stock and the mortgaged property or a sufficient part thereof be sold and for the purposes of such sale the plaintiff shall produce before the Court of such officer as it appoints, all documents in its possession or power relating to the pledged stock and the mortgaged property; and that the money, realised by such sale shall be paid into Court and shall be duly applied (after deduction there from of the expenses of the sale) in payment of the amount payable by the said defendants to the plaintiff and that the balance. If any, shall be paid to the said defendants or other persons entitled to receive the same; and that if the money realised by such sale shall not be sufficient for payment in full of the amount due from the said defendants the plaintiff shall be at liberty to apply for a personal decree against the said defendants for the remaining amount..................'
2. On 14th May, 1970 the Lakshmi Commercial Bank Ltd., filed execution No.37 of 1970 and prayed that the court give notice of the execution application to the judgment-debtors and have the proclamation drawn up in terms of R.66, of Order 21 of the Code of Civil Procedure for sale by auction of properties mentioned in Annexure A to the execution application and further prayed that the proceeds of the auction sale be paid to the decree-holder and in case of short-fall the decree-holder shall take steps against the person and other properties of the judgment-debtor. This Annexure A comprised of two parts; one sets out various machinery and the other 'all foundations, fixtures, office and factory building built at the site.' Notice was order to the judgment-debtors. They could not be personally served but on 20-10-1970 B.C. Misra, J, ordered that service of notice of the application effected on the judgment-debtors by affixation amounts to sufficient service. As the judgment-debtors had not put in appearance they were proceeded ex parte and the Registrar was directed to settle the proclamation of sale. On 3-11-1970 notice of the proposed proclamation as required by Rule 66 (2) of Order 21, Civil Procedure Code was ordered to be given to the judgment-debtors. This notice was also served by affixation. As there were no objections from the judgment-debtors the proclamation of sale was settled on 11-12-1970. On 16-2-1971 an order was passed authorising the court-auctioneer to break open the locks of the premises in order to sell the mortgaged property in pursuance of the previous orders of the Court. The properties were auctioned. Several objection petitions were filed on behalf of various parties including those by judgment-debtors Nos.1 to 4. After getting the reply on behalf of the decree-holder the following preliminary issues were settled by me on 4-5-1971 on the objections filed by defendants Nos. 1 to 4 in I.A. 521 of 1971:--
'1. Whether it was necessary to draw up a final decree before ordering the sale by auction of the property which has been auctioned?
2. Whether objections under O.21, Rule 90, C.P.C., cannot be filed in respect of auction sale of movable property?'
3. I have heard Mr. B.T. Singh, learned counsel for judgment-debtors Nos.1 to 4 (Objectors), Mr. Bikram Singh, learned counsel for the decree-holder and Mr.Kishori Lal Mehra for the auction-purchaser.
4. In I.A.521 of 1971, inter alia, the Objections have taken up the objection that a decree passed by this Court and in execution of which the auction sale had taken place was a preliminary decree and inasmuch as no final decree has been passed by this court the properties could not be auctioned. The auction-purchaser and the decree-holder have, inter alia, urged that this objection was available to the Objectors at the time of the settlement of proclamation of sale and since in spite of notice the Objectors did not appear in the proceedings in pursuance of the application under Order 21. Rule 66. Civil Procedure Code they are debarred from raising any objection under Order 21, R.90, Civil Procedure Code as has been done by them now. To this the reply of the Objectors is that they were never served or validly served with any notice of proceedings under Order 21, Rule 66, Civil Procedure Code.
5. Whether service was actually effected or not is a matter for evidence and Issue No.2 that I settled on 4-5-1971 cannot be disposed of unless the parties adduce evidence. I will, thereforee, proceed to decide Issue No.1 as to whether a final decree had to be drawn up before ordering sale by auction of the property which has been auctioned. It may be recapitulated that my brother B.C. Misra, J., had ordered the sale on 20-10-1970.
6. Mr. B.T.Singh, the learned counsel for the judgment-debtors 1 to 4 (Objectors) has urged that on a reading of the decree itself it is apparent that it is a preliminary decree under O.34, Rule 4, Civil Procedure Code and so unless a final decree was drawn up under Order 34. Rule 5. Civil Procedure Code no sale could take place. In this behalf he has relied on a number of decisions.
7. In Bulkee Bee v. Kaka Hajee Muhammad Ummar Sahib Air 1926 Mad 415, a Bench of the Madras High Court held that a preliminary decree is not capable of execution. It is only a decree absolute under Rule 5 of Order 34. Civil Procedure Code that can be executed. The learned Judges in holding this relied upon a decision of Privy Council in Ashfaq Husain v. Gauri Sahai, (1911) 33 All 264. The Madras case was really one where execution was sought personally against the judgment-debtors and in that context question arose whether a decree passed under Order 34 Rule 5 Civil P.C., was the decree which could be executed. On the construction of the decree in that case it was held that the decree passed under Order 34 Rule 4 Civil P.C., was not capable of execution.
8. In Mohammad Unis v. Janeshar Dass. : AIR1929All881 , a Bench of the Allahabad High Court observed that a preliminary decree under Order 34 Rules 4 can be passed in terms of a compromise and such compromise can have the effect of extending the period allowed for payment in accordance with the wishes of the parties and it must not be strictly limited to a period of six months prescribed by Rule 2 (b) of Order 34. It was further held that where parties agree that the decree should be drawn up under Order 34, Rule 4 it can be assumed that they are aware of the law which requires a final decree under Rule 5. The decree-holders are thereforee bound to apply for a final decree before they can proceed to execution and they are barred from making an application for sale in an execution Court on the basis of the preliminary decree.
9. In Ram Nath v. Deokindan Krishan, Air 1947 All 83, a Bench of the Allahabd High Court held that no application for execution of any decree can be entertained unless an executable decree exists. A preliminary decree for sale cannot be executed.
10. A Full Bench of the Madhya Bharat High Court in Nabbobai v. Hasan Gani Abdul Gani. All 1954 Madha Pra 181 (FB) laid down the distinction between a final decree and a preliminary decree and observed that a final decree performs three functions, namely, it determines that no payment, as required by the preliminary decree, is made, secondly it directs sale of mortgaged property and thirdly it directs applications of sale-proceeds.
11. A bench of the Patna High Court in Lalji Bhagat v.Babu Raghubans Prasad, : AIR1964Pat135 , observed as under:--
'The true test for determining whether an absolute decree is necessary in such cases or not is to find out if the compromise decree is by itself capable of execution without further proceedings in the suit so that the decree-holder may realise his dues by sale of the mortgaged properties or otherswise. It is obvious from the terms of the compromise in the instant case that the compromise decree was not by itself capable of execution. One of the terms incorporated in the preliminary decree was that, in default of payment of any of the Installments, the plaintiff would be competent to start proceedings for final decree and to recover the dues by sale of the mortgaged property as well as from the person and other properties of the defendants. It is clear thereforee, that the decree dated the 27th June, 1945 could not have been executed without further proceedings in the suit itself. In view of the term just mentioned, and had the plaintiff made any attempt to sell the mortgaged property by executing the decree dated the 27th June, 1945, he would have been confronted with this term............... In view of the foregoing discussions, the correct legal position is this. If a mortgage suit is decreed in terms of a compromise, the consent decree amounts to a final decree only when nothing further is to be done in the suit in order to enable the decree-holder to execute the decree. But in case the consent decree cannot be executed without further proceedings in the suit, the decree-holder has to take steps in the suit to have the decree made absolute in terms of the compromise; and whether any rule or Order 34, Code of Civil Procedure, applies or not, the order making the decree absolute amount to a final decree ...............'
12. Mr. Bikram Singh appearing for the decree-holder urge that O.34, Rule 5, Civil Procedure Code could be attracted only in case the decree was passed in terms of O.34, Rule 4, Civil Procedure Code giving to the judgment-debtor six months' time to pay the decretal amount. Since no such period was fixed in the decree in the present case Rule 5 of Order 34 would not be attracted, particularly, when the decree sought to be executed was a compromise decree which, according to the learned counsel, does not come within the purview of Order 34, Rule 4, Civil Procedure Code irrespective of what has actually been stated in the body of the decree. In this behalf Mr. Bikram Singh relied on a Full Bench decision of the Allahabad High Court in Askari Hasan v. Jahangiri Mal, : AIR1927All167 . The Allahabad High Court was considering a compromise decree passed for payment of mortgaged money in Installments which had not fixed a date within six months from the date of declaring the amount due as the date for payment and a question arose whether in such circumstances it was necessary for the decree-holder to apply for a final decree under Rule 5 of Order 34, Civil Procedure Code. It was held that since the decree did not provide for payment on a fixed date within six months from the date of declaring the amount due. Order 34. Rule 4 had no application to the case and consequently it was unnecessary to apply for a final decree in terms of Order 34, Rule 5, Civil Procedure Code. Mr. Bikram Singh had relied on another reported decision of the Allahabad High Court in : AIR1949All317 but there the case was decided on a different point.
13. The decision of the Full Bench of the Allahabad High Court in the case of Askari Hasan : AIR1927All167 was considered by the Bench which decided the case of Mohammad Unis : AIR1929All881 . The two learned Judges who rendered the judgment in Mohammad Unis's case were party to the Full Bench of the Allahabad High Court. In the Full Bench case the parties had not agreed that the decree should be passed under Order 34, Rule 4, Civil Procedure Code whereas in the case considered by the Bench in : AIR1929All881 the case was the reverse.
14. Order 34, Rule 4, Civil Procedure Code postulates passing of a decree in a suit for sale to the effect mentioned in causes (a), (b) and (c) (I) or sub-rule (1) of Rule 2 and further directs that in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property be sold and the proceeds of the sale be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff along with costs, charges etc. The time for payment fixed by such a decree can be extended by the court under sub-rule (2) or R.4.
15. Order 34, Rule 5, Civil P.C. contemplates the passing of a final decree in certain contingencies but it is attracted only where a preliminary decree has been passed under Rule 4. thereforee where only a money decree has been passed initially a final decree under R.5 is not necessary although the decree may authorise the decree-holder to realise the decretal amount by sale of the judgment-debtor's property. Where however, the property is charged with the payment of the decretal amount the property mode of Realizing the decretal amount is to obtain a decree absolute for sale. We have thus to construe the decree in the present case to find out whether it is a decree to which Rule 5 would be attracted.
16. The compromise in the present case which was a mortgage suit provided for payment of the mortgage money in certain Installments and on default for execution by sale of the mortgaged property. The plaintiff did not forgo the benefit of the personal covenant and indeed it is so mentioned in the decree. The liberty clause in the decree permitting the plaintiff to apply for personal decree does not involve adjudication as to the right to a personal decree for the balance. It follows, thereforee, that on a construction of the decree if a personal decree is sought by the plaintiff, the plaintiff would have to apply for one and that would amount to having a final decree passed.
17. The compromise which resulted in the decree being passed sets out that a decree for recovery of money by Installments be passed. There is no bar to a decree under Order 34, Rule 4, Civil P.C., being passed in terms of a compromise extending the period allowed for payment in accordance with the wishes of the parties which is not limited to the period of six months prescribed by O.34, R.1 (b). It was in terms of this prayer that the court passed a compromise decree under Order 34, Rule 4, Civil P.C. a reading of the decree in the present case brings it clearly within the ambit of the rule laid down by the Bench of the Allahabad High Court in : AIR1929All881 . The decree was passed on an application moved by the plaintiff-decree-holders under the provisions of Order 23, Rule 3, Civil P.C. The provisions in the decree for getting the pledged stocks released by payment of four Installments and the charge created on other immovable properties to go show that the decree was under Order 34, Rule 4, Civil P.C., and something more has to be done before the decree for sale could be executed. This obviously could be done on report by the decree-holder that payment of money has not been made or part of the decretal amount had not been paid and so a decree for sale of the property mortgaged may be passed. On a construction of the decree, thereforee, I hold that it is a preliminary decree passed under Order 34, Rule 4, Civil P.C., and by itself could not be executed till a decree absolute was obtained by the decree-holder. The terms on which the decree has been passed clearly fall with in the ambit of the rule laid down by the Patna High Court in the case of Lalji Bhagat, : AIR1964Pat135 and the rule laid down by the Bench of the Allahabad High Court in the case of Mohammad Unis : AIR1929All881 . The decree-holder having consented to a decree being passed under Order 34, Rule 4, P.C., cannot take advantage of the rule enunciated by the Full Bench of the Allahabad High Court in Askari Hasan's case. : AIR1927All167 . The auction sale, thereforee, could not take place on the execution application as made by the decree-holder. I thereforee decided Issue No.1 in favor of the objectors.
18. In view of my findings on Issue No.1, in my opinion, the objection raised about the judgment-debtors being precluded from raising the present objection does not arise. Ordering of sale is the function of the court and goes to the root of the jurisdiction that the court has. A court cannot execute a decree which is not executable. It is immaterial whether a party objects to execution or not. If the court does not have the power to order sale in execution of any decree no such orders can be passed. Issue No.2, thereforee, does not require to be determined at all.
19. I, thereforee, accept the objections of the judgment-debtors Nos.1 to 4 and set aside the auction sale. Parties are left to bear their own costs.
20. Order accordingly.