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TMI Blog2004 (2) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... eal in A.S. No. 404 of 1998 in respect of the interest, which was disallowed, and the appeal is pending in this Court. The first respondent bank filed the application in O.A. No. 236 of 2002 in the Debt Recovery Tribunal at Coimbatore for grant of a certificate under section 31A(1) of the Recovery of Debts Due to Banks Financial Institutions Act, 1993 (hereinafter referred to as the Act ) and it is pending. 4. According to the revision petitioners, the Debt Recovery Tribunal has no jurisdiction to entertain the application and to issue certificate as claimed. Therefore, this Civil Revision Petition is filed to strike out the O.A. No. 236 of 2002 on the file of the Debt Recovery Tribunal, Coimbatore. 5. The point for consideration is as to whether the O.A. No. 236 of 2002 on the file of the Debt Recovery Tribunal, Coimbatore is to be struck off? 6. The learned counsel for the revision petitioners contended that though the application in O.A. No. 236 of 2002 is filed under section 31A(1) of the Act, the said application is not exempted from the purview of the Limitation Act, whether in the form of a certificate or the final decree. In this regard, the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held : "Preliminary decree is a decree within the meaning of section 2(2) of C.P.C. but it is not capable of execution normally till a final decree is passed. In that sense, the Court dealing with a preliminary decree before passing a final decree may not be designated in law as an executing Court within the meaning of section 37 of C.P.C. The questions to be determined by a Court dealing with a preliminary decree before passing a final decree may not be the one under section 47 but still, the transfer of decree by assignment in writing is covered by order 21, rule 16 of C.P.C. for the purpose of execution. Therefore, the Court ... when confronted with the transfer of the decree is debarred from going behind the decree as an executing Court has no merit." (p.166) (3) Shankar Balwant Lokhande v. Chandrakant Shankar Lokhande [1995] 3 SCC 413, in which the Supreme Court has ruled : "The executing Court cannot receive the preliminary decree unless final decree is passed as envisaged under order 20, rule 18(2) C.P.C." (P. 415) (4) Hameed Joharan v. Abdul Salam [2001] 7 SCC 573, in which the Apex Court has ruled : "10. The language used by the Legislature in arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the Tribunal which would have the jurisdiction of entertaining the application for execution of the decree inasmuch as the amount due for which the decree was sought to be executed is over Rs. 10 lakhs. We are also unable to agree with the High Court that because the original decree which was passed was for principal sum of Rs. 6,19,250 the Tribunal would get no jurisdiction... As and when the amount due to the Bank under the decree became more than Rs. 10 lakhs and an application for execution was filed, it could only be entertained by the Tribunal and not by the civil court. It is clear that in view of the provisions of section 34 of the Act, the provisions of order 21 rule 10 C.P.C. would have no application." (p. 658) 9. Section 2(2) of Civil Procedure Code defines : "2. decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question with in section 144, but shall not include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge debt lies only within the jurisdiction of the said Tribunal and as such the jurisdiction of the Civil Court is excluded. After passing of the preliminary decree for partition, as per which specific shares have been allotted to the respective parties and an application is to be filed for passing of final decree at which stage, specific portions have to be allotted to the respective parties considering the report of the advocate-Commissioner and if not divisible in accordance with the Partition Act. After passing of preliminary mortgage decree, as per which the amount due is determined granting time for payment and after such time, an application is to be filed for passing of final decree so that the correct amount payable is to be determined, in that if any amount is paid after passing of preliminary mortgage decree that amount is to be deducted. 12. Therefore, the application in O.A. No. 236 of 2002 filed under section 31A(1) of the Act is only in the nature of an application for passing of final decree and as per that section, the Debt Recovery Tribunal is to issue certificate for recovery of the amount due and payable by the judgment-debtor to the Recovery Officer as deter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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