B.Bhattacharya, J. - (1.) This revisional application under Article 227 of the Constitution of India is at the instance of four of the defendants and is directed against order dated June 1, 2001 passed by the Chair Person, Debts Recovery Appellate Tribunal, Calcutta in Appeal No. DRAT/CAL/A-3 of 2001 thereby affirming order dated March 28, 2000 passed by the Presiding Officer, Debts Recovery Tribunal, Patna in Execution Case No. 55 of 1999.
(2.) There is no dispute that a Title (Mortgage) Suit No. 65 of 1995 initiated by the bank against ten persons including the present petitioners in the first Court of Subordinate Judge, Dhanbad was disposed of on compromise. The terms of the compromise are stated below : "i) That the defendants do pay a lump sum of Rs. 7.00 crores to the plaintiffs, as per the terms of the compromise, within 90 days from the date of issuing an objection certificate by the plaintiff for approaching of the other financial institution/bank/bodies for availing credit facilities, failing which the defendants shall pay the entire admitted claim as shown in para 1 above into Court within a period of sixty days thereafter or any later date upto which time for payment may be extended by the Court. ii) That, on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of suit and such costs, charges and expenses as may be payable under rule 1 together with subsequent such interest as may be payable under Rule 11 of Order XXXIV of the first schedule to the Civil Procedure Code, 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgaged property; in the Court mentioned and all such documents shall be delivered over to the defendant or to such person as he appoints, and the plaintiff shall, if so required, recovery or re-transfer the said property from the said mortgage and clear of and from all encumbrances created by the plaintiff or any person claiming under him or any person under whom he claims and shall, if so required, deliver up to the defendant quiet and peaceable possession of the said property. iii) And it is hereby further ordered and decreed that, default of payment as aforesaid the plaintiff may apply to the Court for a final decree for the sale of the mortgage property, and on such application being made, the mortgaged property or a sufficient part thereof shall be directed to be sold, and for the purpose of such sale the plaintiff shall produce before the Court or such officer as it appoints all documents in his possession of power relating to the mortgaged property. iv) And it is hereby further ordered and decreed that the money realised by such sale shall be paid into Court and shall be duly applied after deduction therefore of the expenses of the sale in payment of the amount payable to the plaintiff under this decree and under any further orders, that may be passed in this suit and in payment of any amount which the Court may adjudge due to the plaintiff in respect of such costs of the suit and such costs, charges and expenses as may be payable under rule 10 together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure 1908, and that the balance, if any, shall be paid to the defendant or other persons entitled to receive the same. v) And it is hereby further ordered and decreed that, if the money realized by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for personal decree against the defendant for the amount of the balance and that the parties are at liberty to apply to the Court from time to time as they may have occasion, and on such application or otherwise the Court may give such directions as it thinks fit."
(3.) Subsequently, on September 2, 1996 the petitioners filed an application under Order 23 Rule 3 read with section 151 of the Code of Civil Procedure for setting aside the compromise decree on the ground of fraud. The bank raised objection to such application filed by the defendants but the said application could not be heard on merit as Debts Recovery Tribunal was constituted on July 16, 1997. Subsequently, on February 1, 1997 the petitioners filed a suit for declaration that the compromise decree obtained earlier was null and void. The said suit was numbered as Title Suit No. 14 of 1997 in the First Court of Subordinate Judge, Dhanbad and the same is pending. Ultimately, on constitution of Debts Recovery Tribunal on July 16, 1997 the records of the case were transferred to the Debts Recovery Tribunal along with pending application under Order 23 Rule 3 of the Code of Civil Procedure.;