- (1.) In a money suit, the following decree was passed by the Trial Court : "It is ordered that the suit for recovery of Rs. 1,06,523.30 paise is decreed against the defendants with costs. Interest @ 13.5% per annum is also allowed to the plaintiff on the decretal amount from the institution of the suit till date of realisation of the decretal amount. The defendants are given a period of six months to pay the decretal amount failing which their property standing mortgaged with the plaintiff will be sold for realisation of the decretal amount. If the sale proceeds fell short of the decretal amount the same can be recovered from the assets of the defendants."
(2.) One after another, objections were filed by the judgment-debtor but those objections did not find favour with the Executing Court. The last objection was filed on the ground that the decree cannot be executed because the same has not been passed in terms of the provisions of Order 34 Rule 5 of the Civil Procedure Code (for short the Code). It was alleged that the decree passed was a preliminary decree and the bank having failed to apply for passing of final decree within the time prescribed under Article 137 of the Limitation Act, decree cannot be executed. This objection too, after due consideration, was dismissed by the Executing Court. The order of the Executing Court has now been impugned in the civil revision.
(3.) At the time of motion hearing, learned counsel for the petitioner placed reliance on judgment in K. Parameswaran Pillai (dead) v. K. Sumathi, 1993 6 JT 515 to contend that without a formal application for drawing up of a final decree, decree would remain a preliminary one and till such time final decree is drawn up, decree cannot be executed. The other contention was that the limitation prescribed for making application has expired and thus the decree has become inexecutable.;