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PETITIONER: KUMAR SUDHENDU NARAIN DEB

       Vs.

RESPONDENT: MRS. RENUKA BISWAS AND ORS.

DATE OF JUDGMENT13/11/1991

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. AGRAWAL, S.C. (J)

CITATION:  1992 AIR  385            1991 SCR  Supl. (2) 233  1992 SCC  (1) 206        JT 1991 (4)   320  1991 SCALE  (2)990

ACT:     Civil Procedure Code, 1908--Sections 2(2) and 47,  Order 34--Preliminary   decree   by  trial   Court   dated   25.7. 1962--Substituted  preliminary decree by High Court by  con- sent of parties dated 13.12.1971--Final decree dated  6.3.63 by trial Court on the basis of its preliminary decree  dated 25.7.1962---Auction  sale  on 15.3.1968--Validity  of  after passing of High Court’s substituted preliminary decree.     Civil     Procedure    Code,     1908--Section     2(2), Explanation--"Decree" Construction of     Civil Procedure Code, 1908---Order 34, Rules 1-4--Fixing date  in  postponing  sale  confirmation--Executing  Court’s power---Limitation.     Civil   Procedure   Code,   1908---Order   34,   Section 47--Auction sale before the passing of High Court’s  substi- tuted preliminary decree--Claim of auction purchasers to  be parties to suit--Effect.     Civil  Procedure  Code, 1908---Section  151,  read  with Article 142, Constitution of India, 1950---Powers of Supreme Court under-Direction to judgment--Debtor to pay interest on the auction sale amount.

HEADNOTE:     The appellant and his co-heirs mortgaged their two-third interest  in  the  property as security for a  loan  of  Rs. 27,000  obtained from one Smt. Biswas,  the  predecessor-in- interest of the plaintiffsrespondents.     After the death of the mortgagee, some of her heirs  and legal representatives filed a mortgage suit on 13.3.1961 for the  recovery of the mortgage money before  the  Subordinate Judge  and  seeking enforcement and sale  of  the  mortgaged property.  The  left out heir of the  mortgagee,  originally arrayed as a defendant was transposed. as a co-plaintiff.     On  25.7.1962,  the  trial court  passed  a  preliminary decree for. Rs.51,570 totalling the principal sum and inter- est, and costs. The 234 decretal amount was proportioned in as much as two-third was ordered  as payable to the original plaintiffs and  the  re- maining onethird to the transposed co-plaintiff. The  decre- tal  amount  was to be paid by the mortgagors  in  15  equal

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annual instalments and in default of any one of the  instal- ments, the mortgagee-plaintiffs were at liberty to apply for making the decree final and in the event of such application being made the mortgaged property, or a part thereof,  shall be directed to be sold. Interest also was allowed on the sum due  from the date of institution of the suit till the  date of realisation of the entire sum.      On  18.12.1962, the proforma-respondent no.8  filed  an appeal  against  the preliminary decree in the  High  Court. Prayer for stay of execution of the decree was rejected.      Though  some  deposits were made on the  basis  of  the preliminary decree, there was a failure to deposit in  terms thereof.  Therefore a final decree was passed by  the  trial court on 6.3.1963, when  the appeal against the  preliminary decree was pending in the High Court.      The decree-holders representing two-third interest  and the decree-holder representing one-third interest filed  two separate execution petitions for realisation of their shares under  the  decree. Both the execution  petitions  contained identical prayers for sale of the mortgaged property and the execution petitions were consolidated and numbered.       On  10.8.1963,  proclamation of sale  was  drawn.  The value of the mortgaged property was suggested as Rs.  75,000 and  Rs.  3 lacs, by the decree-holders  and  the  appellant respectively.       On  4.3.1968,  before the sale of  the  property,  the appellant made a regular objection u/s 47, C.P.C. The appel- lant had also made some more deposits within the intervening period of 41/2 years.      The property was sold on 15.3.1968 on the  proclamation of sale as was drawn on 10.8.1963 for Rs. 1,00,500 in favour of the auction-purchasers [respondents nos. 6 & 7].         On  11.4.1968  the appellant  filed  an  application under Order     21,  Rule  90,  C.P.C. for setting aside  the  sale  and prayed for stay of  its confirmation on the grounds that the judgment-debtors had no 235 saleable  interest in the mortgaged property;  that  legally two execution petitions could not be consolidated; and  that the  provisions of section 35 of the Bengal  Money  Lenders’ Act had been overlooked.     The  application under Order 21 Rule 90 was  treated  as part of the original objection u/s. 47, C.P.C.     The executing Court on 11.4.1968 dismissed the objection u/s  47  C.P.C.  against which the  appellant  preferred  an appeal before the High Court.     Later  the petition under Order 21 Rule 90,  C.P.C.  was formally dismissed in default. On 14.9.1968 the auction sale was confirmed.     In  the appeal against the preliminary decree, the  par- ties  arrived at a settlement on 13.12.1971 before the  High Court.  In  the  place  of  the  preliminary  decree   dated 21.7.1962 a new preliminary decree on settlement between the parties was passed by the High Court, whereunder the  secre- tal  amount was principally agreed not to exceed  Rs.54,000. The  sums deposited by the appellant were adjusted  and  the final amount struck as unpaid was put at Rs.44,000.     Having  cleared off the mortgage debt, the appellant  in his  appeal, preferred against the rejection  of  objection, raised the additional legal ground that after the  displace- ment of the original preliminary decree by substitution, the final decree as well as the auction sale did not survive.     The  High Court rejected all the legal points  otherwise raised,  but  certified  as fit questions as  raised  to  be

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answered  by  this Court without framing anyone of  them  as such.     Hence this appeal by certificate, involving the question of  law  as to whether a court sale held in execution  of  a final  decree,  passed in a suit for  recovery  of  mortgage money  can  be upset under the provisions of section  47  of C.P.C.,  on the displacement of the preliminary decree  upon which such final decree was based.     The  appellant  contended that  the  preliminary  decree dated 25.7.1962 was a preliminary decree for sale passed  in terms of Order 34 Rule 4 and the final decree dated 6.3.1963 was a  final decree for sale under Order 34 Rule 5(3) of the C.P.C., that the 236 right to apply for the final decree arose from the terms  of the  preliminary decree and on the failure of the  defendant making payments in terms thereof. And since the  preliminary decree  of  25.7.1962 was displaced and substituted  by  the preliminary decree passed b) the High Court in appeal, which was  instantly  satisfied, the foundation  under  the  final decree stood removed; that the plaintiff had lost the  right to  ask for a final decree, there was no compulsion for  the purpose or the occasion to pass it; and that the auction had become  non-est  having no legal foundation or  sanction  in law.     The  respondents on the other hand contended that  there could  not  be a reverse process when the final  decree  had factually  been passed and an auction sale in terms  thereof had  taken  place  bringing in the rights  of  the  stranger auction-purchasers. Allowing  the appeal of the judgment-debtor-appellant,  this Court,     HELD: 1.  On the substitution of the preliminary decree, even  though by consent, there is no denying the  fact  that the  seal  of  adjudication gets affixed to  it.  The  court passing it has formally expressed the terms itself under its own authority, even though at the suggestion of the parties. It  conclusively  determines the right of the  parties  with regard to the matters in controversy valid in the suit  till the  stage  of  passing of the preliminary  decree.  In  the field,  the  only preliminary decree is the one,  which  was passed by the High Court substituting the original  prelimi- nary decree of the Trial Court, and the final decree, if  at all required, is to be passed in accordance therewith.  [244 B, G]     2.  The Explanation to Section 2(2) of the Code of Civil Procedure  defining  the word "decree", goes to say  that  a decree  is  preliminary when further proceedings had  to  be taken  before  a suit can be completely disposed of.  It  is final  where  such adjudication completely disposes  of  the suit. It may be partly preliminary and partly final. [244 C]     3.   In the instant case the preliminary decree  whether as  originally  made or as substituted in  appeal,  had  not disposed of the suit completely. It was to be enforceable on the  terms  it  was drawn. There were  obligations  for  the defendants  to  fulfil and on the violation to  observe  the obligations, rights accrued to the plaintiffs. It cannot  be twistedly  said that the obligations of the  defendants  may substitutedly  be that as defined by the appellate  prelimi- nary decree, but the right of the plaintiffs kept accrued on the failure of non-fulfilment of the     237 obligations  of the defendants under the preliminary  decree of  the Court of first instance. Such an  interpretation  or construction  would render the substantive right  of  appeal

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redundant and choked defeating the ends of justice and would otherwise  be ill-fitted in the scheme of Order  34,  C.P.C. [244 D-F]     4.  For the purposes of Section 47, the auction-purchas- er  deemingly is a party to the suit in which the decree  is passed  if  he has purchased the property at  the  sale  and execution of that decree. [245 B]     5.  Instantly, the auction-purchasers had purchased  the property in execution Of the final decree and not in  execu- tion of the preliminary decree and on that basis can at best be  deemed to be parties to the suit throughout only on  the strength  the final decree if obtained on the terms  of  the existing preliminary decree. But the property was not put to sale  in execution of the preliminary decree.  The  auction- purchasers cannot claim themselves to be parties to the suit at  the time of or at any time prior to the passing  of  the preliminary decree. The preliminary decree and final  decree are passed under Order 34 of the Code of Civil Procedure  in one and the same suit, in which two decrees may be  required to  be  passed  at separate stages. And  both  being  formal adjudications  to the stage are formal expressions of  deci- sion  of the Court. At the stage of the  preliminary  decree there  arises  no question of the  property  under  mortgage being put to sale in execution of the decree, and if that is so  the ultimate auction purchaser cannot be held  deemingly to  be party to the suit upto the stage of  the  preliminary decree. [245 B-E]     6.   The converse interpretation that  the  auction-pur- chaser at a sale and execution of the final decree shall  be deemed  to be a party to the suit at and prior to the  stage when preliminary decree is passed, unless sustaining,  would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure. And since all questions arising  between the  parties to the suit in which the decree was passed,  or their  representatives, and relating to the  execution  dis- charge  or  satisfaction of the decree are  required  to  be determined  by the Court executing the decree and not  by  a separate  suit,  the objection of  the  appellant  judgment- debtor  with  regard  to the knocking out  of  the  original preliminary decree was sustainable. [245 E-G]     7.   In  terms of the preliminary appellate  decree  and fulfilment  of the obligations of the defendants on  payment of the sum as struck, there remained no occasion for  enter- taining, maintaining or 238 sustaining  the application of the plaintiff-mortgagees  for sale of the property mortgaged and on that basis the auction sale in favour of the auction-purchasers and confirmation of that sale automatically becomes non-est. The High Court went wrong in rejecting the objection of the  appellant-judgment- debtor. [245 G-H]     8.  No compensatory sum is due to the auction-purchasers under  the strict terms of sub-rule (2) of Rule 5  of  Order 34.  In  exercise of the Court’s inherent powers  under  the C.P.C. and powers otherwise under Article 142 of the Consti- tution, to further the cause of complete justice,  confining it to the facts of the case, and to be fair to the  auction- purchasers,  the appellant is directed to burden himself  in paying to the auction-purchasers, interest on their  blocked sum of Rs.1,05,000 the purchase money, lying in Court  since 1963, which was quantified as equivalent to the sum deposit- ed. [246 D,E-F]     Hukumchand  v. Bansilal & Ors., [1967] 3 SCR 695;  Janak Raj  v. Gurdial Singh and Anr., [1967] 2 SCR 77  and  Sardar Govindrao Mahadik & Anr. v. Devi Sahai & Ors., [1982] 2  SCR

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186, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1203 of 1977.     From  the  Judgment  and Order dated  4.12.1973  of  the Calcutta High Court in Appeal from Original Order No. 624 of 1968.     A.K.Ganguli, U.R. Lalit, S.KNandy, Chandra Nath  Mukher- jee, Gaurav Kumar Banerjee, Ajit Chakravorty, Narayan  Sinha and B.C. Barua for the appellants.     G. Ramawamy, Dr. Shankar Ghosh, R.F. Nanman, P.H.Parekh, Ms.  Sunita Sharma, B.M.Mitra and Dhillon for  the  Respond- ents. The Judgment of the Court was delivered by     PUNCHHI, J. This appeal by certificate, poses an  impor- tant  question of law, as to whether, a court sale  held  in execution  of a final decree, passed in a suit for  recovery of  mortgage  money, can be upset under  the  provisions  of section 47 of the Code of Civil Procedure, on the  displace- ment of the preliminary decree upon which such final  decree was based. The  question  of  law emerges on the  facts  summarized  as follows: 239     Raja  Abhoy Narain Deb was the owner of premises  no.  I 17-A,  Rash Behari Avenue statedly a fashionable quarter  of Calcutta, built on an area approximating 1 Bigha 6  cottahs, with three storied building on it consisting of 32  spacious rooms and two out houses. On the demise of Raja Abhoy Narain Deb,  the  appellant herein, and the  proforma  respondents, succeeded  as heirs to the same on September 15,  1949.  The appellant and his co-heirs mortgaged their two-third  inter- est in the said property as security for a loan of Rs.27,000 obtained  from  the mortgagor Smt.  Prokashini  Biswas,  the predecessor-in-interest of the plaintiffs-respondents. After her  death  some of the heirs and legal  representatives  of Smt.  Biswas, on March 13, 1961, filed a mortgage  suit  for the recovery of the mortgage money etc. in the court of  the 3rd Subordinate Judge at Alipore, being title Suit No.17  of 1961, seeking enforcement and sale of the mortgaged  proper- ty. To this suit the left out heir of Smt. Biswas, original- ly arrayed as a defendant, was transposed as a co-plaintiff. On  July  25,  1962, the trial court  passed  a  preliminary decree  in the sum of Rs.27000 for the principal sum  and  a sum of Rs.24570 for interest on the said principal,  totall- ing  Rs.51570, together with costs. The sum of Rs.51570  was proportioned in as much as two-third was ordered as  payable to  the original plaintiffs and the remaining  one-third  to the transposed co-plaintiff. The decree stipulated that  the mortgagors  were allowed to pay the decrectal amount  in  15 equal  annual instalments, to be deposited by the 30th  June of  each  year, in the afore-mentioned proportions  of  two- third and one-third, to the credit of the respective mortga- gee-plaintiffs;  the  first  instalment  being  payable   by August 31, 1962. The mortgagee-plaintiffs were also  allowed interest on the sums due from the date of institution-of the suit till the date of realisation of the entire sum. It  was further stipulated that in default of any one of the instal- ments, the mortgagee-plaintiffs were at liberty to apply for making  the decree final, and in the event of such  applica- tion being made the mortgaged property, or a sufficient part thereof, shall be directed to be sold, and for such  purpose

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all necessary steps were required to be taken by the  plain- tiffs-mortgagees. On December 18, 1962, the present proforma respondent  no.8, Kumar Sudhendu Narain Deb, filed F.A.  No. 902 of 1964 against the aforesaid preliminary decree in  the Calcutta High Court praying as well for stay of execution of the  decree,  which  prayer was  ultimately  declined.  Some deposits, however, were made to feed the preliminary  decree but since there was a failure to deposit in the terms there- of, a final decree was passed by the Court of the 3rd Subor- dinate Judge, Alipore on March 6, 1963, even though F.A. No. 902 of 1964, the appeal against the preliminary decree,  was pending in the High Court.     The  group of the decree-holders representing  two-third interest  filed  an execution petition  for  realisation  of their own share under the decree 240 which  was  followed by another execution  petition  of  the remaining  decree-holder  representing  one-third  interest, seeking  realisation of his onethird share of the  decreetal amount.  Both  the execution petitions  contained  identical prayers  for sale of the mortgaged property.  The  execution petitions were consolidated and numbered as Execution  Peti- tions  11 and 13 of 1963 respectively. On August  10,  1963, proclamation  of sale was drawn, apparently in the  presence of  parties. The decree-holders suggested the value  of  the mortgaged  property as Rs.75,000. The appellant  herein  put its value at Rs.3 lacs. In these circumstances, the  execut- ing  court ordered that both the valuations be  incorporated in  the sale proclamation. The sale, however, did  not  take place  till  March 15, 1968 and a period of over 4  %  years passed  by in the mean time. By that time, the value of  the property, according to the appellant, had risen to Rs.6 lacs for  which on March 4, 1968, before the sale, the  appellant made  a  regular objection under section 47 of the  Code  of Civil  Procedure.  Within the intervening period  of  4  1/2 years, some more deposits apparently were made by the appel- lant. The property was all the same sold on March 15,  1968, on the proclamation of sale as was drawn on August 10, 1963, for  Rs.  1,00,500 in favour of the auction  purchasers  re- spondents 6 & 7 herein. On April 11, 1968, the appellant yet filed  an  application  under Order 21 Rule  90  C.P.C.  for selling aside the sale and prayed for stay of its  confirma- tion basically on three grounds:   (i)  the judgment-debtors had no saleable interest in  the mortgaged property; (ii)  legally two execution petitions could not be  consoli- dated; and   (iii)  the  provisions of section 35 of the  Bengal  Money Lenders’ Act had been overlooked.     This  petition  was treated as a part  of  the  original objection  under  section 47 C.P.C. On April 11,  1968,  the objection  under  section  47 C.P.C. was  dismissed  by  the executing  court  against which the appellant  preferred  an appeal before the Calcutta High Court being F.M.A. No.624 of 1968.  Later the petition under Order 21 Rule 90 C.P.C.  was formally  dismissed in default in the above backgrround.  On September 14, 1968, the auction sale was confined.     In F.M.A. No.902 of 1964, the appeal against the prelim- inary decree, the parties arrived at a settlement on  Decem- ber 13, 1971 before the Calcutta High Court. In place of the preliminary  decree  dated July 25, 1962 a  new  preliminary decree  on settlement between the parties, was passed  by  a division  bench of the High Court, whereunder the  decrectal amount  was principally agreed not to exceed Rs.54000  being the double

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241 of the original debt of Rs.27000. The sums deposited by  the appellant,  under interim orders of the court from  time  to time to the credit of the decree-holders, were adjusted  and the  final amount struck as unpaid was put at  Rs.44000  re- garding  which claim of the morttgagees was conceded by  the appellant-mortgager as well as to the manner of its payment, and which sum in fact was deposited by him in Court, for not only  simultaneous  passing of the decree but  recording  as well it satisfaction. Having cleared off in this manner  the mortgage  debt,  the appellant in his appeal F.M.A.  624  of 1968,  preferred against the rejection of  objection  raised the  additional legal ground that after the displacement  of the  original preliminary decree by substitution  the  final decree did not survive, and so did succumb the auction sale, posing  amongst others the question set out in  the  opening paragraph  of the judgment. The High Court rejected all  the legal pleas otherwise raised but certified as fit  questions as raised to be answered by this Court, without framing  any one of them as such.     It  was pointed out by Mr. Ganguli, learned counsel  for the  appellant  that the preliminary decree dated  July  25, 1962  was a preliminary decree for sale passed in  terms  of Order 34 Rule 4 of the kind covered under Clause (c) (i)  of sub-rule  (1) of Rule 2 and the final decree dated March  6. 1963 was final decree for sale under Order 34 Rule 5 (3)  of the  Code  of  Civil Procedure. This is  evident  from   the copies of both the decrees which are part of the  additional documents  submitted to this Court. The preliminary  decrees for  sale,  details apart, besides striking the  amount  due payable  in  instalments,  mentions the  time  for  payment, further provides that in default of payment as provided, the plaintiff  may apply to the Court for final decree  for  the sale  of  the mortgaged property; and  on  such  application being made. The mortgaged property or sufficient part there- of.  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  posses- sion  or relating to the mgrtgaged property. It  is  evident from the terms of the final decree that it was passed on the basis of the preliminary decree dated July 25, 1962 and  the plaintiff making an application on September 19, 1962 for  a final decree, and it appearing that the payment directed  by the said decree and orders had not been made by the  defend- ant or any person on his behalf or any other person entitled to  redeem the mortgage. the Court then ordered and  decreed that  the  mortgaged  property  in  the  preliminary  decree afore-mentioned,  or a sufficient part thereof, be sold  and that  for  the  purpose of such sale,  the  plaintiff  shall produce  before the Court or such Officer,, as it  appoints, all the documents in his possession or power relating to the mortgaged property." It is on the strength of terms of  both the  decrees that Mr. Ganguli urged that the right to  apply for the final decree arose from the terms of the 242 preliminary  decree  and  on the failure  of  the  defendant making payments in terms thereof. And since the  preliminary decree of July 25, 1962 was displaced and substituted by the preliminary decree passed by the High Court in appeal, which was  instantly  satisfied, the foundation  under  the  final decree  stood removed. It was further urged that the  plain- tiff had lost the right to ask for a final decree, there was no  compulsory need for the purpose or tee occasion to  pass it,  It  is also urged that the auction has  become  non-est having  no  legal foundation or sanction in  law.  The  well

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settled principle of the appeal being a continuation of  the suit  was  pressed into service to contend  that  the  final decree had no life of its own and could only be passed on an application moved by the plaintiff on the defendant’s  fail- ure to comply with the terms of the substituted  preliminary decree.  Mr.  Nariman,  learned counsel  appearing  for  the respondents on the other hand contended that there could not be  a  reverse process when the final decree  had  factually been  passed and an auction sale in terms thereof had  taken place bringing in the rights of the stranger auctionpurchas- ers.     In  order  to appreciate the respective  contentions  of learned  counsel  for the parties, the scheme  of  Order  34 would be essential to be grasped. It would be seen that Rule 1  thereof  enjoins that subject to the  provisions  of  the Code,   all  persons  having  an  interest  either  in   the mortgage-security  or  in the fight of redemption  shall  be joined  as  parties to any suit relating  to  the  mortgage. Confining  to the relevant statutory provisions  thereunder, as  are applicable to the case, the preliminary  decree  was passed in the foreclosure suit in accordance with sub-clause (c)(i)  of  Clause (1) of Rule 2. Further in terms  of  sub- clause  (c)(ii) of Clause (1) of Rule 2, the Court held  the plaintiffs  entitled to apply for a final decree,  debarring the  defendant  from all right to redeem the  property.  The Court under sub-rule (2) of Rule 2 can, on good cause  shown and  upon terms to be fixed by the Court from time to  time, at  any  time before any decree is passed, extend  the  time fixed  for the payment of the amount found or  declared  due under sub-rule (1) or of the amount adjudged due in  respect of subsequent costs, charges, expenses and interest. Rule  3 of Order 34 provides that when an application is made by the defendant seeking a final decree, the Court has two  courses open  depending on the defendant making payment in Court  of all  amounts due from him under sub-rule (1) of Rule 2,  and not  making payment. Under sub-rule (1) of Rule 3,  a  final decree  of one kind may be passed in terms thereof. if  pay- ment  is made. But if no payment is made a final  decree  of the  other  kind may be passed in terms of sub-rule  (2)  of Rule  3. Sub-rule (3) of Rule 3 enjoins that on the  passing of  a  final decree under sub-rule (2)  all  liabilities  to which the defendant is subject in respect of mortgage or  on account of suit shall be deemed to have been 243 discharged.  Under  Rule 5, the defendant is  given  another opportunity  to  make payment of all amounts  due  from  him under sub-rule (1) of Rule 4, if such payment. is made on or before the day fixed or at any time before the  confirmation of sale in pursuance of the final decree. It is thus notice- able that at every conceivable step opportunity is given  to the defendant to redeem the property at any time before  the confirmation of sale made in pursuance of the final  decree, and  if  such deposit is made the Court bas  to  accept  the payment  and  make an order in favour of the  defendam.  The Court,  however,  has no power to go on  fixing  date  after date, in postponing confirmation of sale to accommodate  the defendant, as was held by this Court in Hukumchand v. Bansi- lal & Ors, [1967] 3 SCR 695. No right is given to the  mort- gagor  defendant to ask for postponement of confirmation  of sale in order to enable him to deposit the amount. Reference may    also be made to Janak Raj v. Gurdial Singh  and  Anr, [1967] 2 SCR wherein  it has been laid down that when no application  for setting aside a sale has been made to the executing court or when  one  made under Rules 89 to 91 of Order 21  gets  dis-

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missed,  the court has no choice thereafter but  to  confirm the sale. This Court made significant observation by  spell- ing  out the policy of protecting auction purchasers in  the following words:               "The  policy  of the Legislature seems  to  be               that  unless a stranger  auction-purchaser  is               protected  against  the vicissitudes  ,of  the               fortunes of the suit, sales in execution would               not  attract customers and it would be to  the               detriment of the interest of the borrower  and               the creditor alike if sales were allowed to be               impugned  merely because the decree was  ulti-               mately  set  aside or modified.  The  Code  of               Civil   Procedure   of   1908   makes    ample               provision.for  the protection of the  interest               of  the  judgment debator who feels  that  the               decree  ought not to have been passed  against               hint. _"               [Underlining ours]      However, this Court in Sardar Govindrao Mahadik &  Ant: v. Devi Sahai & Ors, [1982]  2 SCR 186, carved out an excep- tion in the case of the auction purchaser who was a  decree- holder himself, denying to him the protection given in Janak Raj’s case (supra) to the stranger auction purchaser. As  is discernible  Sardar Govindrao’case (supra) and  Hukumchand’s case  (Supra)  are cases distinguishable  as  against  Janak Raj’s case (supra). Whereas Sardar Govindrao’s case  (supra) is  a case of a mortgagee-’decree-holder’-auction  purchaser and  Hukumchand’s case [supra] relating to a mortgage  suit, Janak Raj’s case (supra) is a case of a simple money  decree in  execution of which the auction purchaser got to buy  the judgment-debtors  immovable property. Still  the  underlined words in the extract from Janak Raj’s case (supra) conceiva- bly leave to the judgment- 244 debtor his rights under the Civil Procedure Code whereby  he can have the decree passed against him set aside and to seek appropriate reliefs on the basis thereof.     Now  coming to the substituted preliminary decree,  even though  by  consent, there is no denying the fact  that  the seal  of adjudication gets affixed to it. The Court  passing it  has  formally expressed the terms itself under  its  own authority, even though at the suggestion of the parties.  It conclusively determines the right of the parties with regard to  the  matters in controversy valid in the suit  till  the stage of passing of the preliminary decree. The  Explanation to Section 2(2) of the Code of Civil Procedure defining  the word "decree", goes to say that a decree is preliminary when further  proceedings  had to be taken before a suit  can  be completely disposed of. It is final where such  adjudication completely  disposes of the suit. It may be partly  prelimi- nary and partly final. The preliminary decree in the instant case,  whether as originally made or as substituted  in  ap- peal, had not disposed of the suit completely. It was to  be enforceable  on the terms it was drawn. There  were  obliga- tions  for the defendants to fulfil and on the violation  to observe these obligations rights accrued to the  plaintiffs. If  we  import this analysis into the understanding  of  the decree, the defendants could obviously in appeal against the decree have their obligations altered and the scope and role of  re-defining  the obligations definitely  vested  in  the appellate  court. It cannot thus be twistedly said that  the obligations  of the defendants may substitutedly be that  as defined  by the appellate preliminary decree, but the  right of the plaintiffs kept accrued on the failure of non-fulfil-

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ment of the obligations of the defendants under the prelimi- nary  decree  of  the Court of first instance.  Is  it  then conceivable that the appellate preliminary decree was  valid for the purposes of defining the obligations of the  defend- ants,  but  was not valid since rights had  accrued  to  the plaintiffs  on the non-fulfilment of obligations  under  the preliminary  decree of the Court of first instance7 Such  an interpretation or construction would render the  substantive right  of appeal redundant and choked defeating the ends  of justice  and would otherwise be iII-fined in the  scheme  of Order 34 C.P.C. Therefore. it must be held that in the field the  only preliminary decree is the one.which was passed  by the  Calcutta High Court substituting the original  prelimi- nary decree of the Trial Court, and the final decree, if  at all required, is to be passed in accordance therewith.     The  fact  that the decree was consensualin  in  nature, having been passed between the parties to the suit, is of no consequence. It has the same binding force just as one which could be passed on contest. An objection was raised that  to this settlement, the auction purchasers were 245 not parties and hence not bound by it, though their interest had  appeared on the scene due to the auction purchase.  Our attention  was  invited to Section 47 of the C.P.C.  and  to Explanation  II(a) providing that’ for the purposes of  Sec- tion  47,  a  purchaser of a property in  execution  of  the decree  shall be deemed to be a party to the suit  in  which the  decree is passed. It was suggested that the  plaintiffs and  the  defendants could not settle the suit  without  the consent and participation of the auction purchasers to their detriment.  There  is an obvious fallacy  in  the  argument. Significantly,  for the purposes of Section 47, the  auction purchaser  deemingly  is a party to the suit  in  which  the decree  is  passed if he has purchased the property  at  the sale  and execution of that decree. Instantly,  the  auction purchasers  had purchased the property in execution  of  the final decree and not in execution of the preliminary  decree and on that basis can at best be deemed to be parties to the suit throughout only on :the strength of the final decree if obtained  on the terms of the existing preliminary  decree.. But  here the property, as said before, was not put to  sale in execution of the preliminary decree. The auction purchas- ers cannot claim themselves to be parties to the suit at the time of or at any time prior to the passing of the  prelimi- nary  decree. It is to be remembered that both the  prelimi- nary  decree and final decree are passed under Order  34  of the  Code  of Civil Procedure in one and the same  suit,  in which  two decrees may be required to be passed at  separate stages.  And both being formal adjudications appropriate  to the  stage are formal expressions of decision of the  Court. At  the  stage  of the preliminary decree  there  arises  no question of the property under mortgage being put to sale in execution  of  the decree, and if that is  so  the  ultimate auction purchaser cannot be held deemingly to be a party  to the  suit upto the stage of the preliminary decree.  In  our opinion,  the converse interpretation that the auction  pur- chaser at a sale and execution of the final decree shall  be deemed  to  be party to the suit at and prior to  the  stage when preliminary decree is passed, unless sustaining,  would be contrary to the spirit and scheme of Order 34 of the Code of Civil Procedure. And since all questions arising  between the  parties to the suit in which the decree was passed,  or their  representatives, and relating to the execution,  dis- charge  or  satisfaction of the decree are  required  to  be determined  by the Court executing the decree and not  by  a

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separate  suit,  the objection of  the  appellant  judgment- debtor  with  regard  to the knocking out  of  the  original preliminary decree was to our mind sustainable. In terms  of the  preliminary  appellate  decree and  fulfilment  of  the obligations  of  the  defendants of payment of  the  sum  as struck,  there remained no occasion for entertaining,  main- taining  or  sustaining  the application  of  the  plaintiff mortgagees  for sale of the property mortgaged and  on  that basis  the auction sale in favour of the auction  purchasers and confirmation of that sale automatically becomes non-est. We are thus of the considered view that the High Court  went wrong in rejecting the objection of the appellant  judgment- debtor. 246     For the view above taken it would not be necessary to go into the other two questions raised by Mr. Ganguli, and  for which there is warrant in the order of the High Court grant- ing  certificate, with regard to violation of section 35  of the  Bengal  Money  Lenders Act, as well as  to  settle  the effect of the executing court not mentioning its own evalua- tion of the property in the proclamation of sale and to have illegally incorporated both the evaluations as suggested  by the  decree-holders and the judgmentdebtors,  rendering  the auction sale void.     But  this  is  not the end of the  matter.  The  auction purchasers  are not on firm footing on the strength  of  the observations  afore-quoted  in  Janak  Raj’s  case  (supra), afore-distinguished. In that case the relief in the suit was unconnected  with  the  property sold in  execution  of  the decree. Here the relief in the suit is inextricably connect- ed  with the property sold. The two cannot be  divorced  di- verting them to different courses. The substituted  prelimi- nary  decree is the one passed under Rule 4 of Order 34  and involves  the  property in dispute. It so happens  that  the stage of Rule 5 Order 34 stands withdrawn, rendered  non-est and  wiped  out. No compensatory sum is due to  the  auction purchasers  under the strict terms of subrule (2) of Rule  5 of Order 34, whereunder the defendant mortgagor, in addition to the payment of all amount due from him under sub-rule (1) of  Rule 4. is required to deposit a sum equal to 5% of  the amount  of  the purchase, money paid into the Court  by  the auction  purchaser, which obviously is meant  to  compensate the auction purchaser. That stage in the eye of law has  not arrived.  Since in strict sense the provisions would not  be applicable to the facts of the instant case, we in  exercise of  the  Court’s inherent powers under the Code  and  powers otherwise under Article 142 of the Constitution, to  further the cause of complete justice, confining it to the facts  of this case, and to be fair to the auction purchasers,  direct the  appellant  to burden himself in paying to  the  auction purchasers,  interest on their blocked sum of Rs.  1,05,000, the  purchase  money, lying in Court since  1963,  which  we quantify  as equivalent to the sum deposited. We thus  allow this appeal on the condition that the appellant shall depos- it  in  the executing Court a sum of Rs.1,05,000,  within  a period of two months from this date and direct that this sum together  with the sum of Rs. 1,05,000, lying in deposit  as auction  money  be paid over by the executing Court  to  the auction  purchasers,  singularly  or  collectively,  at  the convenience  of  the auction purchasers. In  the  facts  and circumstances of the case, however, we leave the parties  to bear their own costs in this Court. V.P.R.                                                Appeal allowed. 247

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