Full Judgment
Dharmpal Sinha, J.
1. In this revision petition the petitioners, who had obtained a mortgaged decree in Title Suit No. 35 of 1950 and had deposited the mortgaged debt, are aggrieved by an order dated 13.8.1992 passed by Sri R.b. Singh, 4th Sub-ordinate Judge, Arrah in a proceeding for final decree in that title suit, whereby the learned Sub-ordinate Judge has held, on a petition filed by the Judgment-debtors-opposite parties, that the final decree cannot be prepared.
2. The main reason given by the learned court below for taking the view is that since the mortgaged property had vested in the State of Bihar under the Land Reforms Act, the final decree even if prepared will be inexecutable and infructuous. The learned court below has cited two decisions reported in : [1976]2SCR193 Vidya Sugar v. Smt. Sudesh Kumari and Ors. and in A.I.R. 1969 SC 971 Shivashankar Prasad Sah and Ors. v. Baikunth Nath Singh in support of the view which it has taken.
3. The contention of the learned Counsel for the petitioners is that the learned court below has committed illegality and material irregularity in exercise of jurisdiction in passing the impugned order for two fold reason. First, that during the during the hearing of the suit itself this issue had been raised whether the entire mortgaged interest had vested in the State of Bihar and the issue had been decided in favour of the decree-holders-petitioners and the same issue could not have been allowed to be raised by the judgment-debtors, who filed the petition of objection during the course of final proceeding, which objection has been upheld, Secondly, the court while passing the impugned order was considering the matter whether final decree should be prepared in accordance with the preliminary decree and against the preliminary decree, there was already an appeal filed by the judgment-debtors before this Court and the appeal is pending and in such a situation the learned Sub-ordinate Judge could not legally have given a finding to the effect that if the decree was to be prepared, it would be infructuous or inexecutable and so the final decree cannot be prepared. Further contention is that the ratio of the decision referred to in the impugned order namely, 1975 SC 2295 and 1969 SC 971 could not be held applicable to the facts of this case, inasmuch as, both the decisions related to the stay not in preparation of the final decree but in execution case and in none of the cases land-lord-mortgagor had obtained a decree for redemption with regard to Bakast land, which had been mortgaged previously as is the case here.
4. On the other hand learned Counsel for the opposite parties-judgment-debtors has supported the impugned order by submitting that the impugned order does not require any interference for the reason that the final decree even if prepared would be inexecutable in view of the fact that at the time of the vesting of the proprietary interest in the State of Bihar under the provision of the Land Reforms Act the decree-holders were not in Khas possession of the Basast land, that was mortgaged to the opposite parties-judgment-debtors and as mortgagee were in khas possession and so, according to him, the land in question would be deemed to have been vested in the mortgaged and not in the mortgagors-decree-holders, who had no interest left in the. vesting. According to his submission no property would be left which could be rendeemed.
5. I have considered carefully the submissions. There does not seem to be dispute that during the hearing of the suit itself the issue had been raised as to whether Bakast land had also vested in the State of Bihar and the issue had been decided in favour of the decree-holders and appeal admittedly had been preferred against the preliminary decree. Before the appellate Court the judgment-debtors may take any stand; but the learned court below in such a situation, in my opinion, has committed material irregularity in examining that aspect and stopping the final proceeding only on the ground that the final decree prepared would be inexecutable. The question whether the final decree eventually would be executable or inexecutable could not have been anticipated by the learned court below and any view taken on the basis of such anticipation, in my opinion, in erroneous in law. The learned Counsel for the petitioners appears to be correct in submitting that the ratio of none of the decisions cited by the learned court below in the impugned order was applicable to the facts and circumstances of the case. So, for these reasons, I am of the opinion that the impugned order is fit to be set aside I do not consider it necessary to go into the other questions raised by the learned Counsel for the opposite parties-judgment-debtors when first appeal against the preliminary decree is pending.
6. In view of what I have stated above, I set aside the impugned order and allowed this revision petition and direct that the learned Sub-ordinate Judge shall proceed to prepare the final decree in terms of the preliminary decree. Under the facts and circumstances of the case, there will be no order as to cost.
7. It will be open to any of the parties to approach before any appropriate from, it is aggrieved by the final decree that will be prepared.