Mvi. Mamtaz Ali Majharbhuiya vs Md. Majammil Ali Majharbhuiya

K. Lahiri, J.—In Title Suit No. 80 of 1979, a suit for foreclosure, the Plaintiff-Petitioner succeeded and the trial court passed a preliminary decree in his favour directing the Defendant-Opposite party to deposit Rs. 700/- into the court within two months. It is the common case of the parties that the preliminary decree was made in terms of Order 34 Rule 2, Sub-rule (1)(g) of the CPC for short "the Code". It is also the common case of the parties that the Defendant, deposited the amount within the time fixed by the court as ordered in the preliminary decree and filed an application under Order 94 Rule 3, Sub-rule (1) for a direction ordering the Plaintiff to perform his obligations under the preliminary decree. The Petitioner objected that the judgment debtor of the preliminary decree in the foreclosure suit could not obtain a final decree under Order 34 Rule 3 Sub-rule (1) of "the Code". Learned Sadar Munsiff No. 1 rejected the petition holding that the judgment-debtor of a preliminary decree may, on fulfilment of the condition imposed on him, apply for and obtain a final decree in his favour ordering the Plaintiff to perform his duty in terms of the preliminary decree.

There is no debate at the bar that in a suit for foreclosure, the Plaintiff can obtain a preliminary decree directing the Defendant to deposit the due amount within a fixed period. It is not disputed at the bar, and, that too very rightly, that if the Defendant fails to comply with the terms of Order 34 Rule 2, Sub-rule (sic) he cannot redeem the mortgaged property. It is also not disputed that when the Defendant makes the payment into court in due compliance with the provisions of Order 34 Rule 2(1)(c) of the Code, the trial court can pass a final decree ordering the Plaintiff: (i) to deliver up the documents referred in the preliminary decree (ii) and, if necessary order the Plaintiff to retransfer at the cost of the Defendant the mortgaged property as directed in the decree and, (iii) if necessary, order the Plaintiff to put the Defendant in possession of the property.

On bare perusal of Order 34 Rule 3 it becomes crystal clear that the Plaintiff can obtain a final decree in his favour on an application made by him, when the Defendant fails to perform the obligation within the period fixed by the Court under Order 34 Rule 3 Sub-rule (1) of "the Code", debarring the Defendant from all rights to redeem the mortgaged property and also, if necessary, ordering the Defendant to put the Plaintiff in possession of property, if the property is in possession of the Defendant. In that event the Plaintiff becomes a decree holder in such a final decree.

Similarly, if the Defendant complies with the terms of the preliminary decree, he must make an application under Order 34 Rule 3(1) of "the Code" praying for a final decree in his favour and the court shall grant relief to the Defendant as provided in Clauses (a), (b) and (c) of Sub-rule (1) of Rule 3 of Order 34. In that final decree the Defendant obtains a decree in his favour and against the Plaintiff. Under these circumstances, the Defendant becomes a decree-holder, on due performance of the terms of the preliminary decree in a suit for foreclosure.

Under these circumstances the finding reached by the trial Court that the opposite party-Defendant, upon due performance of his obligation under the preliminary decree rendered under Order 34 Rule 1 of the Code, could apply for and obtain a final decree in his favour was correct finding. Similarly, the trial Court was justified in turning down the application of the Petitioner claiming that the Defendant was not competent to obtain a final decree in his favour in terms of Rule 3(1) of Order 34 of the Code. I am of the firm opinion that the Opposite party-Defendant is entitled to a final decree. When the Defendant bad made payment into the Court all amounts due from him under Order 34 Rule 2, Sub-rule (1) of the Code, the Court was bound to render a final decree under Order 34 Rule 3(1) in favour of the Defendant.

In the result, I hold that there is no merit in the application. Accordingly, it is dismissed with cost of Rs. 100/-. The cost is awarded as the Petitioner has enriched himself being in possession of the decretal land since 1980 upon instituting the present case.