Law: Civil Procedure Code (V of 1908)

Section: O. XXXIV, rr. 4, 5, 33, O. XX, rr. 6(1), 7

(a) Civil Procedure Code (V of 1908), O. XXXIV, rr. 4 & 5--- Suit relating to mortgage of immovable property---Preliminary decree passed under r. 4, O. XXXIIV----Not capable of execution. Rule 4, Order XXXIV, C. P. C. provides for the passing of a preliminary-decree in a suit for sale by which, the amount due on that date is declared and a direction Is made requiring the defendant to pay into Court the amount so found due within a stipulated period; and further directing that in default of the defendant paying the amount the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property ors sufficient part thereof be sold and the pro ceeds of sale be paid into Court. The decree in such a suit has to be in Form 5-A provided In Appendix D to the First Schedule of the Cod: of Civil Procedure. A preliminary decree is not capable of execution and it is only a decree absolute under rule 5 of Order XXXIV that can be executed. Till the mortgaged properties are sold it is not possible to say whether the sale proceeds would be sufficient to pay off the decratal amount. It Is only when the sale proceeds are not sufficient to cover the whole of the decretal amount that the personal liability to pay the balance arises if the document sued on provides for personal remedy against the mortgagor, and a preliminary decree cannot, therefore, give a personal remedy against the mortgagor. No application for the execution of any decree can be enter tained unless the executable decree exists. No preliminary decree for sale can be executed. An application for the execution of a decree is an application in execution, whereas an application for the preparation of a final decree is an application in suit. Bulk Bee and another v. Kaka Haji Muhammad Umar Sahib and others A I R 1926 Mad. 415; Ashfaq Hussain and others v. Gauri Sahai I L R 33 All. 264; Kannish Naidu v. Chengama Naidu and another A I R 1917 Mad. 844; Motilal v. Ram Narain A I R 1917 All. 429; Jungli Lai and others v. Laddu Ram A I R 1919 Pat. 430; Sat Parkash and another v. Bahal Rai and another A I R 1931 All. 3861 Madam Theatres Ltd. v. Dinshaw & Co. Bankers Ltd. A I R 1945 P C 152 and…