Examine whether the decree is preliminary or final in the following case: ‘X’ the mortgagee of the house brings a suit against ‘Y'.....

Question: Examine whether the decree is preliminary or final in the following case: ‘X’ the mortgagee of the house brings a suit against ‘Y’, the mortgagor, for foreclosure of the mortgage and the decree is passed in favour of ‘X’.

Find the answer to the mains question only on Legal Bites. [Examine whether the decree is preliminary or final in the following case: ‘X’ the mortgagee of the house brings a suit against ‘Y’, the mortgagor, for foreclosure of the mortgage and the decree is passed in favour of ‘X’.]

Answer

In the given question the decree passed in favour of ‘X’ is a preliminary decree under Order 34 Rule 2.

A decree may be preliminary or final as provided in section 2(2) of CPC, 1908. Explanation attached to this section states that a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and decree is final when such adjudication completely disposes of the suit.

According to Order 34 Rule 2, firstly a preliminary decree is passed in a suit for foreclosure of a mortgage. The relevant part of Rule 2 of Order 34 on which the question is based provides that in a suit for foreclosure, if the plaintiff (mortgagee) succeeds, the court shall pass a preliminary decree( it is notable that here these words shall have been used, hence the court is bound to pass a preliminary decree and it cannot pass a final decree.)

It is also to be noted that in a suit for foreclosure, the decree does not completely dispose of the suit, the suit is completely disposed of only when certain necessary conditions are given in Order 34 Rule 2 are satisfied, for example- When the amount (principal with interest) due to the plaintiff is ascertained.

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