Indian Bank vs Mahant Enterprises
1997 Latest Caselaw 1012 Del

JUDGMENT

K.S. Gupta, J.

(1) Defendant No. 2 has filed this application under Rule 5(1)of Order Xxxiv read with Section 151, Cpc, inter alia, alleging that the plaintiffs filed suit for recovery of Rs. 1,91,595.51P. against the defendants under the provisions of Order Xxxiv, Civil Procedure Code and the suit was disposed of by the judgment dated 8/07/1993. Feeling aggrieved, plaintiff filed appeal being Rfa (OS) No. 4/1994 before the Division Bench limited to the question of award of interest pendentelite and future 13.5% per annum. Defendants have paid the entire decretal amount along with interest and costs as per the said Judgment dated 8/07/1993 within the stipulated time. It was prayed that the plaintiffs be directed to deliver the documents of title referred to in the preliminary decree to defendant No. 2.

(2) In the reply plaintiff has alleged that the defendants are not entitled to get back the titled deeds of the mortgaged property till the question of payment of pendent lite. and future interest at the enchanced rate is not decided in Rfa (OS) No.4/1994. However, it is not denied that the defendants have made the payment of the decretal amount a long with interest and the costs as per the judgment dated 8/07/1993 within the stipulated period.

(3) Contention advanced by Mr. B.R.Narang appearing for the plaintiff-Bank was that the appeal is the continuation of suit, therefore, till the appeal filed on interest point by the plaintiff is not decided, the defendants cannot be returned of the title deeds. Last para of the aforesaid judgment dated 8/07/1993, which is relevant for deciding the controversy at hand runs as under : "1.After the decree is satisfied, the title deeds which are stated to have been lodged by the plaintiff in the Court will be returned to the defendant No. 2."

(4) While admitting the appeal operation of the said part of the judgment has not been suspended by the Division Bench. That being so, after the payment of the decretal amount with interest and costs the defendants have become entitled to the return of the title deeds. However, since the suit was filed under the provision of Order Xxxiv, Cpc, to safeguard the interest of the Bank return of the title deeds is made conditional on the defendants furnishing undertaking before the Registrar that pending appeal they would be alienate the mortgaged property and in case the appeal is allowed they will immediately re-deposit the title deeds with him.Application is disposed of accordingly.