ORDER
C.Y. Somayajulu, J.
1. Respondent, under a transaction of a mortgage by conditional sale, put the revision petitioners in possession of the plaint schedule property and had later filed a suit for redemption of mortgage on the ground that the revision petitioners are evading to receive the payment due, in order to deprive her of the plaint schedule property. After contest that suit was decreed, and the suit filed by the mortgagees i.e., second revision petitioner and Ayyanna (first revision petitioner) i.e., father of revision petitioners 3 to 5, against the respondent and another for an injunction, was decreed till recovery of possession of the plaint schedule property in execution of the redemption of the decree passed in the suit filed for redemption.
2. Alleging that he deposited the amount within the time granted, respondent filed an E.P. for recovery of possession of the plaint schedule property. That E.P. was resisted by the second revision petitioner and his brother Ayyanna i.e. father of revision petitioners 3 to 5 on various grounds. By the order under revision the executing Court ordered delivery of the plaint schedule property to the respondent overruling the objections of the revision petitioners that the execution petition is not maintainable in view of the fact that the respondent failed to obtain a final decree within time and as the decree sought to be executed is only a preliminary decree and not a final decree. Aggrieved thereby, the judgment debtors preferred this revision.
3. Though there was some dispute about the date of deposit, because of misplacement of record of the trial Court in view of constitution of new Court and transfer of the suit, the learned Counsel for revision petitioners now agreed that the amount was deposited into Court within the time stipulated.
4. The main contention of the learned Counsel for revision petitioners is that since the decree obtained by the respondent in a suit is for redemption of mortgage by conditional sale, is only a preliminary decree and since only a final decree can be put to execution, and since the title to the property still vests in the revision petitioners and since the respondent cannot recover possession, title to the property is re-conveyed to him under a final decree, question of delivery of possession of the property to the respondent in pursuance of a preliminary decree does not arise and so the order under revision is not sustainable. He placed strong reliance on Venkat Reddy v. Pethi Reddy : AIR1963SC992 , where distinction between a preliminary and final decree was considered. The contention of the learned Counsel for respondent is that merely because two decrees are contemplated in suits for redemption of mortgage, the fact that the decree holder did not obtain a final decree per se is not a ground for holding that the preliminary decree is not executable because even a preliminary decree, when it finally concluded the rights of parties would be executable and in this case since the preliminary decree clearly states that the respondent is entitled to recovery of possession of the plaint schedule property on his depositing Rs. 600/- even though no final decree is passed and since the transaction between the parties is but a mortgage, question of revision petitioners acquiring title to the plaint schedule property under the deed of mortgage does not arise, because once a mortgage, it always will be a mortgage, and so the well reasoned order under revision cannot be said to be erroneous. He placed strong reliance on Devabathina Paradesaiah (Died) v. State Bank of India : 2002(1)ALD683 ; Hameed Joharan v. Abdul Salam : AIR2001SC3404 and Rakamapalem Bhupathamma (Died) and Ors. v. A. Varathamma : 2006(4)ALD514 , in support of his contention.
5. In Devabathina Paradesaiah's case (supra), relied on by the learned Counsel for the respondent, personal decree as well as mortgage decree was passed against the defendant in a suit filed by a bank. The bank filed E.P. to execute the decree without obtaining a final decree. Objection of the defendant that a preliminary decree is not executable was overruled by the executing Court. When the defendant moved the High Court questioning that order a Division Bench of this Court held that since the decree is both personal decree as well as mortgage decree, the decree holder, in principle, cannot be forced to first exhaust the remedy by way of execution of mortgage decree alone and told that he can then only, if the amount recovered is insufficient, take recourse to execution of the personal decree, as Rule 15(2) of Order 34 clearly authorizes the decree holder to execute the decree in default of payment of the amount, by bringing the charged property for sale in execution of the very decree under which the charge was created, and that there is no need to obtain a separate final decree under Rule 15(2) of Order 34 CPC and that that decree can be executed even without obtaining a separate final decree in order to recover the amount decreed under the suit.
6. In Hameed Joharan 's case (supra), the apex Court held that the 'Executability' and 'enforceability' are two different concepts having two specific connotations in legal parlance and that they cannot be termed as synonymous.
7. In Rakamapalem Bhupathamma's case (supra), since the learned Judge was considering a decree in a suit for partition, the said decision is not much relevant for deciding this revision.
8. Before taking up the rival contentions of the learned Counsel for both sides, I feel it relevant to mention that the specific plea taken by the second revision petitioner and his brother in me written statement filed by them as defendants in the suit is that the transaction between them and the respondent is an outright sale in their favour, and is not a mortgage and so question of redemption does not arise. One of the issues framed in the suit was whether me plaintiff (respondent) is entitled to redeem the mortgage and is entitled to re-conveyance of the suit property. Additional issue framed in the suit is whether the suit document is a mortgage by conditional sale. The trial Court held that the suit document is a mortgage by conditional sale and that the plaintiff (respondent) is entitled to redeem the suit mortgage and also reconveyance of the suit property.
9. Rule 8 of Order 34 which relates to final decree in a suit for redemption reads:
Rule 8:-(1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgage property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this Rule, the plaintiff makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree, or, if such decree has been passed, an order-
(a) ordering the defendant to deliver up the documents referred to in the preliminary decree,
and, if necessary,
(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged and also,
If necessary,
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this Rule, the Court shall not pass an order under Sub-rule (1) of this Rule, unless the plaintiff, in addition to the amount mentioned in Sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent, thereof.
(3) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf-
(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in Rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or
(b) in the case of any other mortgage, not being a usufructuary mortgage pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.
So it is clear that till a 'final decree debarring the plaintiff from all rights to redeem the mortgaged property is passed', the plaintiff has a right to deposit the money payable to the defendant into Court and seek delivery of his document of title and can also recover possession.
10. In case of a mortgage by conditional sale or an anomalous mortgage the defendant can, in case if payment as per the decree is not made by the plaintiff, invoke Sub-clause 3 and file an application for passing a final decree debarring the rights of plaintiff to redeem the mortgage. On passing of such final decree only, the right of the plaintiff to redeem the mortgage gets extinguished. Till the passing of final decree, on an application by the defendant in a suit for redemption, the plaintiff continues to have the right to redeem the mortgage. The finding of the Court in the suit, as stated earlier, is that the document executed by the respondent is only a mortgage by conditional sale but not an absolute sale. Therefore, the contention of the learned Counsel for the revision petitioners that inasmuch as the respondent would become the owner only after execution of a sale deed by the revision petitioners in his favour, respondent has no right to recover possession, has force because, till a final decree is passed under Rule 8(3) of Order 34 CPC, on an application by the defendant, the plaintiff in the suit does have the right to redeem the mortgage and so he only would be the owner of the said property. The defendant becomes the owner of the mortgaged property only after such final decree is passed on an application filed by him under Rule 8(3) of Order 34 CPC.
11. One of the contentions raised by the learned Counsel for the revision petitioners is that the preliminary decree passed by the trial Court is not in accordance with the form prescribed by CPC. If the revision petitioners felt that the decree passed in the suit is not in a proper form, they should have approached the trial Court for correction of the decree and for passing of a decree in a proper form. Be that as it may, the relevant portion of the preliminary decree in this case reads:
It is hereby declared that the amount due to the defendant on the mortgage mentioned in the plaint calculated up to this 28th day of November, 1970 is the sum of Rs. 600-00 for principal, the sum of Rs. Nil for interest on the said principal, the sum of Rs. Nil for costs, charges and expenses (other than the costs of the suit) properly incurred by the defendant in respect of the mortgage security together with interest thereon, and the sum of Rs. Nil for the cost of this suit awarded to the defendant, making in all the sum of Rs. 600-00.
2. And it is hereby ordered and decreed as follows:
(i) That the plaintiff do pay into Court on or before the 3rd day of February, 1971 or any later date to which time the payment may be extended by the Court the said sum of Rs. 600-00.
(ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge in respect of such costs, of the suit and such costs, charges and expenses as may be payable under Rule 10, together with subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure, 1908, the defendant shall bring into Court all documents in his possession or power relating to the mortgaged property in the plaint mentioned and all such documents shall be delivered over to the plaintiff, or such person as he appoints, and the defendant shall, if so required, re-convev or re-transfer the said property to the plaintiff, free from the said mortgage and clear of and from all incumbrances created by the defendant or any person claiming under him or any person under whom he claims and shall, if so required, deliver upto the plaintiff quiet and peaceable possession of the said property.' (Underlining mine)
12. Revision petitioners, admittedly did not file a petition to pass a final decree as per Rule 8(3) of Order 34 CPC. So the question is whether the failure on the part of the respondent to file a petition for passing of a final decree debars her from recovering possession of the property mortgaged by her.
13. Respondent in compliance with I the direction in the preliminary decree deposited the amount directed to be deposited within the time stipulated. The clause in the preliminary decree enables the respondent seeking delivery of peaceable possession of the property on payment of the amount covered by the decree. So merely because the respondent did not file a petition for passing a final decree, she cannot be denied the right to seek delivery of' possession of the property because in Gnanambal Ammal v. Ayya Swami 1955 (68) Law Weekly 383, it is held:
Where a preliminary decree in a suit for redemption of a mortgage finally determined the sum payable by the plaintiff to the mortgagee and specifically provided for the delivery of peaceful possession on such deposit being made and that money was deposited into Court, it cannot be said that the plaintiff is not entitled to an order for delivery on the so called preliminary decree itself after he has made the deposit without going through the formality of applying first for a final decree. There may be cases in all preliminary decrees, which are immediately executable, though the decree is called preliminary, because it is not a final determination of all rights as between the parties and dismissed the appeal against an order directing delivery of possession of property.
The sum payable by the respondent to the petitioner is exactly known. The factum of the respondent depositing the amount within the time stipulated in the preliminary decree is not in dispute. In Venkata Reddy's case (supra) it is held that insofar as the matters dealt with in a preliminary decree can be treated as conclusive. The Court in the preliminary decree passed by it directed that on the respondent depositing Rs. 600/- into Court, she has the liberty to seek delivery of possession also. So merely because respondent failed to seek re-conveyance, relief of delivery of possession cannot be denied to her because the transaction between the parties is only a mortgage but not a sale and so revision petitioners cannot be treated as the owner.
14. Therefore, the executing Court did not commit any error in ordering delivery of possession of the property to the respondent.
15. For the above reasons, I find no merits in this revision and hence the revision petition is dismissed. No costs.