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Mosa Rajayyan Vs. Jacob Haris - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 625 of 1980-B
Judge
Reported inAIR1981Ker135
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47 - Order 34, Rule 7; Code of Civil Procedure (CPC) (Amendment) Act, 1974
AppellantMosa Rajayyan
RespondentJacob Haris
Appellant Advocate P. Krishna Moorthy and; B. Krishna Mani, Advs.
Respondent Advocate Gopalakrishnan Nair, Adv.
DispositionRevision dismissed
Cases ReferredLucy Kochuvareed v. P. Mariappa Gounder
Excerpt:
- - this contention that the decree is bad, not capable of being executed, for the reason that a preliminary decree did not precede the decree sought to be executed and that there is no direction to pav the mortgage amount within the period stipulated in order xxxiv. rule 7, and as a matter of fact the amount was deposited only on 9-12-1977 cannot hold good for the simple reason that the decree has become final, execution petition has been filed within the period of limitation, and the court has found that the amount as directed in the decree had already been deposited......could not be executed inasmuch as it was not one passed in conformity with the provisions of order xxxiv, rule 7 of the code of civil procedure, for no preliminary decree was passed preceding the decree that was sought to be executed, as required under that rule. he pointed out that the decree was passed on 31-3-1967 at a time when order xxxiv of the code of civil procedure stood without being amended by the kerala amendment to that order (concerning suits relating to mortgage of immovable property) which was brought into effect by the amendment dated 10-12-1973 published in the kerala gazette no. 3 dated 15-1-1974 and which contemplated, by rule 4 thereof, the passing of a decree straightway without requiring the passing of a preliminary decree preceding it. it is also submitted by him.....
Judgment:
ORDER

K. Bhaskaran, J.

1. This revision by the 3rd judgment-debtor (3rd defendant in the suit) is directed against the order dated 28-2-1980 passed in E. P. No. 233 of 3975 in O. S. No. 134 of 1964 on the file of the Munsiff, Neyyattmkara, which was an application for recovery of the plaint schedule property, the suit for redemption having been decreed as early as on 31-3-1967.

2. The counsel for the petitioner submitted that the decree could not be executed inasmuch as it was not one passed in conformity with the provisions of Order XXXIV, Rule 7 of the Code of Civil Procedure, for no preliminary decree was passed preceding the decree that was sought to be executed, as required under that rule. He pointed out that the decree was passed on 31-3-1967 at a time when Order XXXIV of the Code of Civil Procedure stood without being amended by the Kerala amendment to that Order (concerning suits relating to mortgage of immovable property) which was brought into effect by the amendment dated 10-12-1973 published in the Kerala Gazette No. 3 dated 15-1-1974 and which contemplated, by Rule 4 thereof, the passing of a decree straightway without requiring the passing of a preliminary decree preceding it. It is also submitted by him that as required under Order XXXIV, Rule 7 (1) (c) (i) C. P. C., the amount due to the mortgagee was not deposited within six months from the date of the passing of the decree.

3. It is true that a final decree without the passing of a preliminary decree is seen to have been passed in this case at a time when the Kerala amendment to Order XXXIV C. P. C. had not come into force. It is also seen thatthe decree did not specify the date within which the amount due to the mortgagee was to be deposited by the plaintiff-decree-holder. That would not,however, render the decree null and void incapable of being executed. The relevant Rules in Order XXXIV C. P. C. contemplating the passing of a preliminary decree in the first instance, and final decree at a later stage, are intended to enable the court to determine the correct amount due to the mortgagee-defendant, and to give an opportunity to the mortgagee-plaintiff to deposit that amount within a specified time, on the fulfilment of which he is entitled to recover the property mortgaged. There might, however, be cases where the amount due to the mortgagee-defendant as stated in the plaint is admitted by him (mortgagee) and therefore, it might be possible for the court to pass a (final) decree straightway. Maybe that such cases might be few and far between; all the same possibility of such occasion arising could not be ruled out. It cannot therefore be contended that for the simple reason that a (final) decree, without a preliminary decree preceding it, has been passed, the decree is null and void. Even otherwise, once the decree is allowed to become final, without being appealed against, any irregularity, even illegality, unless it be a case of total lack of jurisdiction, would not render the decree null and void or incapable of being executed. The executing court is bound to allow the execution of the decree without going behind it.

4. The counsel for the petitioner sought to place reliance on the decision of the Supreme Court in C. Subbanna v. K. Subbanna, (AIR 1965 SC 1325). Therein the Supreme Court took the view that though in the decree passed by the Court the period for which mesne profit has to be paid to the decree-holder has not been specified, it cannot exceed for a period of three years inasmuch as Rule 12 of Order XX C. P. C. provides that the maximum period for which mesne profit could be awarded is only for a period of three years. Rule 12 (1) of Order XX reads as follows:--

'12. Decree for possession and mesne profits.-- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne the Court may pass a decree.

(a)

(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to such mesne profits;

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until -

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the -judgment-debtor with notice to the decree-holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.'

There is thus a statutory bar against the grant of mesne profits for a period exceeding three years. The decision of the Supreme Court in C. Subbanna v. K. Subbanna (AIR 1965 SC 1325) followed in Lucy Kochuvareed v. P. Mariappa Gounder (AIR 1979 SC 1214) interpreting the provisions of Order XX, Rule 12 C. P. C., cannot be applied to redemption suit under Order XXXIV, inasmuch as there is no provision containing a statutory bar identical to what is contained in Order XX, Rule 12 in Order XXXIV. This contention that the decree is bad, not capable of being executed, for the reason that a preliminary decree did not precede the decree sought to be executed and that there is no direction to pav the mortgage amount within the period stipulated in Order XXXIV. Rule 7, and as a matter of fact the amount was deposited only on 9-12-1977 cannot hold good for the simple reason that the decree has become final, execution petition has been filed within the period of limitation, and the court has found that the amount as directed in the decree had already been deposited.

5. The counsel for the petitioner then submitted that on an application filed by the decree-holder a commission was taken out to assess the damages on account of acts of waste alleged to have been committed by the revision petitioner in the plaint schedule property, and that the amount assessed had been awarded in the decree under execution. According to him, the detailed objections to the commissioner's report filed by him had not been properly considered or dealt with by the court below.This aspect of the matter is seen to have been dealt with towards the end of the order of the court below and it reads as follows :--

'Even though the 3rd defendant filed an obiection to this commission report, he could not substantiate the objections. The plaintiffs will be entitled to Rs. 566/- towards damages.'

Inasmuch as the obiections are stated to have been not substantiated, there is no scope for interference with the award of damages ordered by the court below. The counsel for the petitioner submitted that for the limited purpose of reassessing the damages arising out of acts of waste alleged to have been committed by the revision petitioner the matter may be remanded to the court below. I do not think that there is any justification for doing so. bearing in mind that the suit is of the year 1964 and that though the decree was passed as early as on 31-3-1967. there-vision petitioner was successful in denying the fruits of the decree to the decree-holder by keeping the litigation alive. Any further life to this litigation would only mean giving a premium for litigation not warranted by any sense of justice.

For the foregoing reasons the revision fails and is dismissed: however, in the circumstances of the case, I direct the parties to bear their respective costs in this revision.


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