Remanded

Bank of India v. Tanaji Ashru Lokare and Ors.

Bombay HC5 Apr 2005FA/1128/1998

Case brief

AI extract

What is this about?

The High Court of Bombay held that a decree of foreclosure cannot be automatically passed following a money decree without a preliminary decree and proper framing of issues. The appeal was remanded to the trial court to decide the mortgage and foreclosure right following Order XXXIV of the CPC.

What did the court decide?

The appeal was dismissed, the money decree was kept as is, and the matter was remanded to the trial court to frame issues and decide the mortgage and right of foreclosure within six months.

Bank of India Vs Tanaji Ashru Lokare and Ors. — Contract and Commercial Disputes | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.1128 of 1998

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 Bank of India ..Appellant

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 versus

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 Tanaji A. Lokare & ors. ..Respondents

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 Mr. K. M. Mody with H. P. Harsana i/b. M/s. Harshad
 & Co. for the Appellants.

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 Mr. G. S. Godbole for the Respondent No.2.

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 CORAM : D. G. DESHPANDE,J.

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 DATE : 5TH APRIL,2005

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ORAL ORDER :

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 1. Heard counsel for the appellant and the
 respondent No.2.

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 2. The Bank of India appellant has filed this
 appeal even though the decree is passed in its
 favour by the trial court and their grievance is
 that the money decree should have been followed by a
 decree of foreclosure of mortgage and since that is
 not done, therefore, this appeal.

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 3. Counsel for the bank contended that the

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 defendants respondents and guarator defendants who
 did not appear or did not file their written
 statement, it has to be considered that mortgagee is
 guarantor to the bank and when money claim is
 decided in favour of the bank the decree for
 foreclosure should automatically follows.

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 4. Mr. Godbole for the respondent No.2 on the
 other hand contended that for passing a decree of
 foreclosure there has to be a preliminary decree,
 certain procedure has to be followed. Preliminary
 decree gives a right of appeal and since that
 procedure as laid down in Order XXXIV of Code of
 Civil Procedure, has not been followed, this court
 cannot now in first appeal pass a preliminary decree
 because that would deprive the respondents of their
 right to appeal to challenge the preliminary decree.

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 5. I find considerable force in the submissions
 made by Mr. Godbole. While passing a decree for
 foreclosure the court has to follow certain
 procedure, there has to be an issue in that regard,
 which the trial court has not framed in the instant
 case and unless that is done, there cannot be any
 decree for foreclosure. Therefore, this is a case
 where the matter is required to be remanded back to
 the trial court.

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 6. Suggestion for remand was given by me when
 the arguments of both the counsels were almost
 concluded, and therefore considering the legal
 obstacles, both the counsels did not seriously
 oppose suggestion for remand.

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 7. In the circumstances, I pass the following

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 order :

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ORDER

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 . Money Decree is kept as it is. But the
 matter is remanded back to the trial court for
 deciding the issue of mortgage and right of the bank
 for foreclosure. The Defendants including the
 guarantor defendant will be at liberty to file their
 written statement or amend their written statement
 in that regard only. The Trial Court will frame all
 issues regarding the said mortgage as are required
 by law to be decided with the right of the bank to
 foreclosure. Trial court will permit the parties to
 adduce evidence, if any, on those issues and will
 pass order according to law taking into
 consideration provisions of Order XXXIV of the Code
 ofCivil Procedure regarding preliminary and final
 decree of foreclosure, if any such decrees is or are
 required to be passed in the circumstances, the
 trial court may decide.

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 . The trial court will complete the trial in
 this regard and pass judgment within six months from

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 receipt of this order.

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 . Parties to appear before the trial court on
 25.4.2005.

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 . If R & P is received, the same be sent back

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 to the trial court, immediately.

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 . Appeal disposed of accordingly.

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 5.4.2005 (D.G. DESHPANDE, J.)

Bank of India v. Tanaji Ashru Lokare and Ors.

Case brief

What is this about?

What did the court decide?

Bank of India v. Tanaji Ashru Lokare and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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