(Firm) Ram Kumar Rameshwar Lal v. Prem Sukh Das And Others

1. This is an appeal by an attaching decree-holder and arises out of an application made by him for the preparation of a final decree. The appellant had a simple money decree against Messrs Ramdeo Bang Lal. Messrs Ramdeo Rang Lal had a preliminary mortgage decree which they had obtained in Suit No. 187 of 1925. The appellant attached it and applied for the preparation of final decree.

2. The lower Court has dismissed the application on the ground that he had no locus standi to apply for the preparation of a final decree. We think the learned Subordinate Judge was quite right. The appellant purports to come under O. 21, R. 53 of the CPC. It does not apply to the present case. R. 53, O. 21, Cl. (1), applies to the case of a decree which-is either for the payment of money or for sale in enforcement of a mortgage or charge. The preliminary decree does not come under this clause. The preliminary decree which has been attached cannot be regarded as one for the payment of money or for sale in enforcement of a mortgage or charge nor is it capable of execution. The learned counsel has also relied on O. 22, R. 10 of the CPC. R. 10 lays down:

In other cases of assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

3. The mere attachment of a decree does not amount to an assignment, creation or devolution of any such interest as is mentioned in Cl. (1), R. 10, O. 22 of the CPC. This clause also does not help the appellant. An application for the preparation of a final decree can be made only under O. 34, R. 5, Cl. (2) of the CPC, which lays down:

Where such payment is not so made, the Court shall on application made in that behalf by the plaintiff, pass a decree that the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be dealt with as is mentioned in R. 4.

4. The appellant has no locus standi to apply under this clause for the preparation of a final decree. There is no force in the appeal. It is therefore ordered that it be dismissed with costs.

B.D/R.K

5. Appeal dismissed.