1982 PLP 2191 (CLC)

(b) Civil Procedure Code (V of 1908)‑ ‑‑‑O. XIII, r. 9‑Documents, return of ‑Party filing documents in Court‑Held, only such party entitled to receive back and not any other party. A I R 1937 Sind 273 ;. P L D 1973 Lah. 695 and I L R 13 Cal. 322 ref. Tahir Hussain for Plaintiffs. Abdul.Latif A. Shakoor for Defendants. There are two applications one filed by the defendants Nos. 2 and 3 praying that the Title Documents filed in the snit may be returned to them and further that the entry in the Record‑of‑Rights relating to the mortgage decree should be deleted. The second application has been filed by the plaintiffs for return of title deeds and other documents filed by the plaintiffs in original in the above matter. The admitted position is that the plaintiff had filed. a suit for recovery of Rs. 2, 59, 128. 42 and a preliminary decree under Order XXXIV was passed on 6‑10‑1971. The plaintiff did not apply for final decree under Order XXXIV, rule 5, C. P. C. and after about 9 years the defendants have filed the present application. Their main contention is that as the plaintiffs have not applied for passing of a final decree and as after expiry of 8 years an application cannot be made, the preliminary decree is only a dead paper and, cannot be executed and, therefore, these documents which were deposited with the plaintiffs creating an editable mortgage should be returned to them. The learned counsel for the defendants Nos. 2 and 3 relying on A I R 1973 Sind 273, P L D. 1973 Lah. 695, and, I L R 13 Cal. 322 contended that as the preliminary decree cannot be converted into a final decree, nor the mortgagee has a right of foreclosure, the defendants Nos. 2 and 3 are entitled to the return of the documents. The contention seems to be that since the decree cannot be executed and as the plaintiff has exhausted its remedy on the basis of the mortgage it is not entitled to hold the document. It is true that the preliminary decree is not executable. However, if a remedy is barred it does not mean that the rights are also barred. The entitlement to hold the documents does not flow from the preliminary decree and therefore, even if the plaintiff is not entitled to execute the decree the mortgage will not stand merged with the preliminary decree nor will it stand completely extinguished. Rights and remedies are two differ ent aspects of a case and if the remedy is barred ‑the right is not automatically extinguished. In this regard so far as the return of documents is concerned reference may be made to Order XllI, rule 9, C.P.C. which provides that any person desirous of receiving back any document produced by him in the suit and placed on record be entitled to receive back the same. In the present case the documents were brought on record by the plaintiff on the bias of which a preliminary decree was passed. These documents were filed by the plaintiff and, therefore, only the plaintiff will be entitled to receive back these documents. In these circumstances the plaintiff's prayer in its application No. 529/80 is granted provided the plaintiff delivers to the proper officer a certified copy to be substituted for the original and undertakes to produce the original if required to do so. The prayer of defendants Nos. 2 and 3 for return of documents to them is rejected. The next prayer of the defendants No. 2 and 3 relates to the deletion of entry in the Record of Rights relating to the preliminary decree. The Record‑of‑Rights should reflect the correct state of affairs about the properties. As the preliminary decree passed by the Court is not executable I direct that in the Record of Rights without deleting the earlier entries it may be added that the preliminary decree passed in Suit No. 235/71 is not executable. M.Y.H. Order accordingly.