Canara Bank, Siwan vs M/s. Decent Sarees Palace and Others

Mungeshwar Sahoo, J.—The plaintiff appellant Canara Bank has filed this first appeal against the judgment and decree dated 16.12.1995 passed by Sri Arjun Kumar Singh, the learned 3rd Subordinate Judge, Siwan in Mortgage Suit No. 26 of 1991 whereby the plaintiff''s suit has been decreed on admission.

The plaintiff appellant filed the aforesaid mortgage suit against the defendant respondents praying therein that a decree for realization of Rs. 67,863.20 paise be passed in favor of the plaintiff bank and against the defendants and the amount decreed may be charged on the mortgage property whose details has been given in schedule 2 of the plaint.

The plaintiff filed the aforesaid suit claiming the aforesaid relief alleging that the defendant No. 1 approached the plaintiff bank for loan and on being satisfied the plaintiff bank awarded loan of Rs. 50,000/- with interest @ 14% + 2% = 16% per annum. The defendant No. 5 respondent stood guarantor. When the defendants did not pay the amount several notices were sent but when nothing was paid the suit was filed for realization of the loan with interest calculated up to 30th January 1991 total of Rs. 67,878.20 paise.

The defendants appeared in the suit and filed written statement admitting the claim of the plaintiff and stated that they are ready to pay the amount claimed by the plaintiff in two installments.

From perusal of the impugned judgment and decree it appears that the learned court below found that the plaintiff''s claim has been admitted and no objection has been raised by the plaintiff. When offer was made by the defendants to pay the amount prayed for by the plaintiff, the plaintiff agreed to it so the court below passed the impugned judgment and decree.

The Learned Counsel for the appellant submitted that the learned court below proceeded under misconception of law. According to the Learned Counsel it was mortgage suit and, therefore, final decree should have been prepared but the suit has been disposed of by preliminary decree and the court below has not granted any interest.

As stated above nobody appeared on behalf of the respondents.

Admittedly, the suit has been filed by the plaintiff bank for realization of the amount stated above. According to the plaintiff after passing a decree of the said amount the same may be charged from the mortgage property. In such circumstances, when the amount is paid to the plaintiff there is no question of charging the same from the mortgage property arises. When the defendants prayed before the court below to pass a decree in favour of the plaintiff for Rs. 67,863.20 paise and prayed that the defendants may be exempted from payment of cost on the ground that they voluntarily agreed to pay and satisfy the claim of the plaintiff, no objection was raised by the plaintiff in the court below. In such circumstances, the court below has passed the decree and directed the defendants to pay the decretal amount within two months in two installments. In such circumstances, the said decree has already fully taken its effect. It is not the case of the plaintiff that the defendants never paid the said amount.

From perusal of the impugned judgment it appears that the plaintiff never insisted before the court below for passing a decree for future interest. It further appears that the submission of the defendant respondents regarding the payment of the amount claimed by the plaintiff and regarding exemption of payment of cost was consented by the plaintiff and, therefore, in other words it can be said that the learned court below passed a consent decree. When the amount as agreed or consented by the plaintiff has been paid by the defendant or directed to be paid by the defendants, there is no question of preparation of an other final decree arises because the present judgment and decree was passed on consent so it is a final decree. In the judgment itself it has been mentioned that if the defendant will fail to deposit decretal amount within two month the plaintiff is at liberty to proceed for realizing the amount from the person and properties of the defendants. It is not the case of the plaintiff that the amount was never paid by the defendants.

In view of the above facts and circumstances of the case, I do not find any merit in this first appeal and, therefore, this first appeal is dismissed.