- (1.) D. K. Seth, J. Mr. Shashi Nindan, learned counsel for the petitioner, raised very interesting questions in the present case, namely : - (1) Whether a suit for possession claimed in terms of the condition of delivery of possession contained in mortgage deed without seeking relief of foreclosure comes within the purview of Order XXXIV requiring passing for preliminary decree and then drawing up a final decree and whether such decree can be held inexecutable before final decree is passed in an objection under Section 47 of the Code of Civil Procedure (hereinafter referred to as 'the Code') after the decree is satisfied by delivery of possession. (2) Whether such a decree can be negatived by reasons of Sections 4 and 5 of the U. P. Debt Relief Act, 1977 and the possession already delivered could be restored to the judge ment debtor.
(2.) THE brief facts relating to the present case are summarised as follows : Pursuant to a mortgage dated 3-9-1975 for a period of five years containing a clause for delivery of possession a suit was filed in 1981. The said suit was decreed ex parte on 18-1-1992. Application under Order IX, Rule 13 of the Code for setting aside the decree was rejected. There was no appeal against the ex pane decree. The Proceeding under Order IX, Rule 13 has also reached its finality. Execution Case No. 45 of 1984 was levied by the decree- holder which stood fully satisfied by delivery of possession of the property pursuant to the decree on 21-8-1984. An objection under Section 47 was filed on"21-ll-1985 challenging the executability of the said decree. Admittedly the decree for costs was still unsatisfied. The learned trial court by an order dated 4-5-1987 allowed the said objection and direct restoration and posses sion of the property. The said order dated 4-5-1987 passed by the learned Munsif, Kasia, district Deoria in Execution Case No. 45 of 1984 arising out of suit No. 1143 of 1981 was challenged by means of Civil Revision No. 79 of 1987 before the learned District Judge, Deoria. By an order dated 18-7-1987 the learned Additional District Judge, Second Court, Deoria, to whom the said case was assigned, had dismissed the Civil Revision No. 79 of 1987 and affirmed the order passed by the learned Munsif and directed delivery of the property back to the judgment-debtor within a period of 30 days. Out of these orders the present writ petition arises. On the prayer of Mr. Shahshi Nandan leave is granted to amend the cause title so as to convert the petition into one under Article 227 of the Constitution of India. Accordingly this petition is being treated as an application under Article 227 of the Constitution of India.
(3.) A plain reading of the plaint (Annexure 1) as translated at the Bar by Mr. Shahshi Nandan reveals that it contains a prayer that in case a decree for possession is not possible, in that event, the principal and the interest payable may be decreed. The said prayer has been couched as prayer No. 3. The first prayer was a decree for possession while the second prayer as for a decree for a sum of Rs. 3600 being the occupation charges payable by the defendant. The plaint in paragraph 2 has given the particulars of the mortgage as is required in the pleading for a suit for foreclosure which is provided in Form No. 45 Appendix A to the Code. They also claimed an alternative decree for principal and interest in case the first two reliefs are found not available. The description of the property is also included in the plaint as is requried in the pleading of a suit for foreclosure. The right to foreclose a mortgage is provided under Section 67 of the Trans fer of Property Act which runs as follows : "67. Right to foreclosure or sale.-In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold. A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem to the mortgaged property is called a suit for foreclosure. Nothing in this Section shall be deemed- (a) to authorise any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or a usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or (b) to authorize a mortgagor who holds the mortgagee's rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or (c) to authorize the mortgagee of a railway, canal, or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale ; or (d) to authorize a person interested in part only of the mortgage-money to institute a suit relating only to corresponding part of. the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, served their interests under the mortgage. ";