P L D 1977 Peshawar 61 (PLP)

This civil revision arises out of the execution proceedings by Sardar Jan Gul Khan of Peshawar City against Mst. Sahib Sultan and others (heirs of Hafiz Sultan Muhammad Khan). In 1955 Hafiz Sultan Muhammad mortgaged one house and two shops with Captain Sardar Jan Gul for a consideration of Rs. 5.000 for a period of five years. It appears that the possession of the mortgaged property was not transferred to the mortgagee and Hafiz Sultan Muhammad mortgagor executed a rent deed at the rate of Rs. 50 -in favour of the mortgagee. In December, 1955, Hafiz Sultan Muhammad received further mortgage amount of the Re. 2,000 and the rent was increased to Rs. 70 per month. In August. 1971, the respondents, heirs of Hafiz Sultan Muhammad, stopped payment of rent to the mortgagee who instituted a civil suit for recovery of mortgage amount plus the arrears of rent to be realised by the sale of the mortgaged property. The suit was decreed in the following terms: - "Consequently I grant the plaintiff a decree for the recovery of Rs. 7,660 along with the rent due till today from 30-6-72 with costs."

2. The decree holder filed an application for execution of the decree by attachment and sale of the property under mortgage. The judgment-debtors filed objection petition maintaining that the lower Court having failed to pass the decree in accordance with the provisions of Order XXXIV, C. P. C. the decree wan not executable and that the decree-holder was not entitled to realize the decretal amount. Following the case of Lala Moti Ram Khatri v. Basheshar Nath Khatri and others (A I R 1939 Pesh. 34) the learned executing Court was of the view that the decree-holder was entitled to realisation of his decretal amount from the mortgaged property even though the decree -vas not made out in accordance with the provisions of Order XXXIV, C. P. C.

3. In appeal, the learned District Judge on accepting the appeal observed: - "In his plaint the plaintiff-decree-holders have not sought the recovery of the decretal amount through sale of the house. The suit was brought under Order XXXIV, rule 4, C. P. C. and under this order the Court below was bound to order the J. Ds. the payment of the decretal amount and should have afforded time to the J. Ds. for the payment of decretal amount. A mortgagor (mortgagee) who was (has obtained a preliminary decree for sale of the mortgaged property under Order XXXIV, rule 4, C. P. C. and who has failed to apply within limitation for a final decree for sale under Order XXXIV, rule 5, C. P. C. cannot bring a suit on the basis of the preliminary decree for sale. The "decree in question was passed under Order XXXIV, rule 4, C. P. C. and the decree-holders cannot lodge the execution proceedings without obtaining final decree as required under order XXXIV, rule 5, C .P. C. This revision petition is against this order.

4. The learned counsel for the respondents relies on Muhammad Yunis v. Janeshar Das and others (A I R 1929 All. 881). At page 882 citation (d) reads: - Where parties agree that the decree should be drawn under Order XXXIV, 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 sty therefore bound to apply- for final decree before they can proceed to execution and they are barred from making an application for sale in an execution Court. The next case quoted by the learned counsel is Bulkee Dee and others v. Kaka Hajee Muhammad Umer Sahib and others- (A I R 1926 Mad. 415) which reads:- "Under the present Code in the case of mortgage, preliminary decree is passed under rule 4 of Order XXXIV. If the mortgagor-defendant does not pay into Court the Amount mentioned in the preliminary decree within the time fixed in the decree a final decree for sale has to be passed under rule 5 and if the proceeds of the sale of the mortgaged property are not sufficient to cover the amount, a personal decree for the balance had to be passed under rule

6. It is the decree that is passed under rule that is executable against the mortgagors personally. In the absence of a decree under rule 6 the mortgagee is not entitled to proceed against the property of the mortgagors other than those covered by the mortgage." I am inclined to think that the rule in these cases is not applicable to this case. The decree in this case was executable as it was, therefore, the learned executing Court was not competent to object to its execution. This finds support from (Machullathil) Chandukuty Nayar v. 'Kuruvathanicheri Keezana Narayana Nayar and others (A I R 1945 Mad. 1083). It is in the nature of a money decree which the decree-holder intends to execute against the property. The provision of a preliminary decree are not palpable in the concluding paragraph of the judgment in favour of the decree-holder. There is no direction to the judgment debtors in respect of payment of the decretal amount within a certain rim and no statement that if the money is not paid, the property would be sold and there is no direction to take account to ascertain tine amounts. It must be made clear that the guiding factor in such a case is the operative part of the judgment, where in the absence of any direction to the judgment -debtors, there could be no occasion of default-by them so as to give cause to tile decree-holder to pray for drawing up a final decree. The view taken by the lower appellate Court does not appear to be correct, for, a preliminary decree is not a condition precedent for every decree which can be executed without resorting to the formalities complained in the rules of Order XXXIV. A broader view of Order XXXIV was taken in cases of Ahmad Mirza Beg and others v. Allahabad Bank Ltd. (A I R 1926 Oudh 385) and Qazi Ghulam Amir v. Mst. Masooda Khanam (A I R 1943 All. 321) and in the latter case it was hold: - Order XXXIV is not exhaustive and it is open to the parties, even in a suit for sale brought on foot of a simple mortgage, to settle by compromise the form of the decree. For example, they can agree that the decretal amount shall be payable by the judgment-debtor by installments extending over a much longer period than the period of six months laid down in Order XXXIV, rule

2. It is 8180 open to them to agree that the very first decree passed in the suit shell be an executable decree and thus do away with the necessity of the passing, first of a preliminary decree and, then of a final decree as provided in Order XXXIV. The result of the above discussion is that I hold that the decree passed in favour of the petitioner was not merely a preliminary decree so as to be followed by final decree contemplated by Order XXXIV, and that it was a lawful and executable decree. For the above reason, I allow the revision petition, set aside the order passed by the District Judge and restore the order passed by the executing Court with no order as to costs. S. A. H. Revision allowed.