Lachhamin Bai W/O Lal Bahadur … vs Ambika Prasad Bhatt on 30 November, 1995

Madhya Pradesh High Court
Lachhamin Bai W/O Lal Bahadur … vs Ambika Prasad Bhatt on 30 November, 1995
Equivalent citations: 1996 (0) MPLJ 723
Author: R Garg
Bench: R Garg


R.S. Garg, J.

1. The unsuccessful defendants have preferred this appeal being aggrieved by the judgment and decree dated 18-4-1991 passed in Civil Appeal No. 33-A of 1987 by the learned Additional Judge to the Court of the District Judge, Bilaspur, reversing the judgment and decree dated 21-3-1987 passed in the original suit No. 104/1982 by the learned Fifth Civil Judge, Class II, Bilaspur.

2. Brief facts necessary for the decision of the appeal are that the plaintiff who had mortgaged the suit premises with the defendants filed a suit for redemption. It is not in dispute between the parties that the property was mortgaged under a mortgage deed by the plaintiff in favour of the defendants. It is also not in dispute that the defendants were the tenants at the monthly rental of Rs. 2/- in the same premises. The defendants appeared after notice and contested the suit on all possible grounds. They also submitted that in case a decree for redemption is granted in favour of the plaintiff, they are entitled to recover the amounts spent by them in repairs, upkeep and betterment of the house as according to them all such repairs were necessary. After recording evidence and hearing the parties, the learned trial Court dismissed the suit. The plaintiff preferred first appeal. The learned first appellate Court passed a decree in favour of the plaintiff-respondent directing the defendants-appellants to restore possession of the property to the plaintiff with the further direction that the electric fittings which have been put by the defendants may be removed by them while delivering possession of the property to the plaintiff. The amount of Rs. 1,000/- deposited by the plaintiff in the proceedings under Section 83 of the Transfer of Property Act may be withdrawn by the defendants from the said Court. It is to be noted further that the trial Court did not pass a preliminary decree in accordance with Order 34, Rule 7, Civil Procedure Code but treating it to be a suit for possession, straightaway directed delivery of possession on payment of the said amount.

3. Being aggrieved by the said judgment and decree, the defendants have preferred this appeal, which has been admitted by this Court on 25-9-1991 on the following substantial question of law :

“Whether the first appellate Court committed an error by passing a final decree of redemption without passing a preliminary decree thereon under Order 34, Rule 7, Civil Procedure Code?”

4. Shri T. C. Naik learned counsel for the appellants contended that in view of the language of Rule 7 of Order 34, Civil Procedure Code no Court has jurisdiction to pass final decree without passing a preliminary decree. He also submitted that the decree on this ground alone is- liable to be set aside. He further submitted that the provisions of Rule 7 of Order 34 are not only for the interest of the plaintiff but also for protecting the interest of the defendant that in the event of the amounts are not deposited, then the decree for sale or foreclosure may be passed. Replying the above arguments and relying upon the judgment in M. Muthiriar v. Avyathurai, AIR 1978 Madras 246, counsel for the respondent contended that it was not obligatory on the Court to pass a preliminary decree in every case.

5. Order 34, Rule 7, Civil Procedure Code starts with ‘in a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree’. The word ‘shall’ sometimes may be treated to be directory and not mandatory but before declaring the word to be directory or mandatory the endeavour of the Court should be to see what was the intention of the Legislature. Ordinarily and with grammatical variations, the ordinary dictionary meaning should be assigned to the word. The word ‘shall’ is ordinarily used as command or to direct a mandate. If the opening words of Rule 7 provide that the Court shall pass a preliminary decree, then unless any other intention can be gathered from the body of the rule, ordinary meaning must be given to the word.

6. The rule continues to say the Court shall pass a preliminary decree (a) ordering that an account be taken of what was due to the defendant at the date of such decree for…..or (b) declaring the amount so due at that date; and (c) directing. The Court which grants a preliminary decree has to order under clause (a) that account be taken of what was due or under clause (b) the Court can declare the amount so due at that date, i.e. on the date of granting the preliminary decree. If this was the end of the rule, there would have been no problem because the Court either could have directed taking of the account or could have declared the amount so due, but the rule proceeds further with the conjunctive word ‘and’. The word ‘and’ presupposes that what has been done has to be done with the further duties which are incorporated in the further section. In my understanding, the Rule 7 has to be read as ‘in a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree ordering that account be taken or declaring the amount so due at that date and directing that if…’ The use of the word ‘or’ between clauses (a) and (b) prima facie shows and conclusively leads to the undisputed conclusion that the Court has to do additional work while granting a preliminary decree. The Legislature in its wisdom has not used the word ‘or’ immediately after clause (b) but has used the word ‘and’ to show conjunction and not dis-conjunction. According to clause (c), the Court has to direct further that if the plaintiff pays into Court the amount so found or declared to be due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared in Court under clause (b), as the case may be and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in Rule 10 together with subsequent interest on such sums respectively, as provided in Rule 11, the Court shall further order the defendant to deliver up to the plaintiff all documents in his possession or power relating to the mortgaged property and retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances. Sub-clause (ii) of clause (c) further provides that if the amount found or declared due under or by the preliminary decree is not paid on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of the subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for final decree. In case of a mortgage other than the usufructurary mortgage, a mortgage by conditional sale or an anomalous mortgage, the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold or in case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all right to redeem the property.

7. The Court has to consider various aspects before granting final decree. It is not a suit seeking possession either from the trespasser or a licensee or a lessee. In a suit for redemption of mortgage what is sought from the defendant is absolute title back. The title which was shrouded by clouds under the mortgage deed is required to be cleared, but the law is not absolutely silent on the lapses of such a plaintiff who was absolutely scrupulous while contesting the suit becomes careless and unscrupulous in observing further conditions imposed by the Court. The Court is duty bound to direct the parties to comply with the directions as are provided under clause (c) of Order 34, Rule 7, sub-rule (1). In the matter of M. Muthiriar v. Avyathurai (supra), the learned single Judge has merely considered the effect of clauses (a) and (b). While deciding the matter, it was observed :

“It is contended on behalf of the defendant appellant that he might not have had any objection for the passing of a preliminary decree for redemption and therefore he allowed the matter to proceed ex parte and had the correct procedure as contemplated in the Civil Procedure Code been followed, the plaintiff would have been obliged to file an application for a final decree in which the defendant would have received a notice and that after such notice, he would have had an opportunity to contend before the Court that amounts more than the sum of rupees 2,000 were due to him. This is hardly acceptable. If Rule 7(i) stops with saying that the preliminary decree should direct ascertainment of the amount as mentioned in clause (a) of that rule, the contention may have some force. But as already seen, there is an alternative clause, namely clause (b) of Rule 7(1) which contemplates the Court declaring the amount due even at that stage without giving any direction for the ascertainment of the amount due to the mortgagee on a later date.”

With due respect, I am unable to agree with the observations made in that judgment. The learned Judge has merely held that during the course of the final decree proceedings, the Court merely has to take accounts and declare the amount so due and if there is no dispute regarding the amount so due, then straightaway a final decree can be passed. The learned Judge did not consider the effect and impact of clause (c), sub-clause (1), which says that even if the amount so due had been declared, the Court is obliged to direct payment. The said authority, in my opinion, would not be applicable to a case where there is dispute between the parties regarding the amount due.

8. It is to be further seen that if the amount has not been deposited by the plaintiff, then the defendant is entitled to move an application to the Court that the plaintiff be debarred from all rights to redeem the property. The Court is not entitled to travel beyond its jurisdiction even if the Court is of the opinion that nothing further can be done in the final decree proceedings. If the intention of the Legislature was to grant a final decree in such cases as pointed out by Shri Tiwari, then the said intention ought to have appeared from the language from which the authority gets jurisdiction.

9. The learned first appellate Court, as argued by Shri Tiwari, has considered the entire material and has come to the conclusion that the amount claimed by the defendant as repairs was not justifiable. In para 19 of the appellate judgment, the learned first appellate Court has held that in a house where the rent was Rs. 2/- per month, the defendant would not spend such a huge amount. The learned first appellate Court lost sight of the fact that when the defendant was the tenant he was obliged to pay Rs. 2/- only, but when he became a mortgagee, he was not only a tenant in the premises but was also interested to see that the amount of loan which has been given to the plaintiff is properly secured and the security which has been given in his possession is also secured. If under such circumstances the defendant comes and says that he has spent the said amount, then the first appellate Court ordinarily with such a cursory finding should not have rejected it. I set aside that finding of the learned first appellate Court.

10. In view of the discussion above, it is directed that the decree for possession granted by the first appellate Court is set aside. The matter is remanded back to the first appellate Court with a direction to pass a preliminary decree in accordance with the provisions of Order 34, Rule 7, with a further direction that account be taken of what is due to the defendant regarding principal and interest, if any, on the mortgage, costs of the suit, etc., in terms of clause (a) and a further direction as contemplated under clause (c).

11. The appeal deserves to and is hereby allowed but, however, there shall be no orders as to costs.

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