S. Barman, J.
1. Defendant No. 1 (hereinafter referred to as the mortgagee) is the appellant, in this second appeal, from a reversing decision of the learned 1st Additional Subordinate Judge, Cuttack, whereby he set aside a decision of the Additional Munsif of Jajpur, and decreed the plaintiffs’ suit in the circumstances hereinafter stated.
2. Plaintiff No. I is a deity called Sri Saleswar Mahadey, plaintiff No. 2 and defendants 2 to 4 are members of a joint Hindu family who are marfatdars of the said deity plaintiff No. 1. Schedule Ka properties, mentioned in the plaint, are stated to be the absolute Debottar properties of the deity plaintiff No. 1–Schedule Kha properties are said to be the ancestral joint family properties of plaintiff No. 2 and defendants 2 to 4.
3. The plaintiffs’ case, shortly stated, was this : On March, 1948, defendants 2 to 4, by a conditional sale deed (Ext. A), transferred the disputed properties mentioned in Schedule Ka and Kha to defendant No. 1 (appellant herein) by way of mortgage by conditional sale for a consideration of Rs. 300/-. In 1950, defendants 2 to 4 brought a suit for redemption of the said mortgage being Title Suit No. 309/1950 in the court of the Munsif Jajpur. On August 30, 1952 the said Title suit of 1950 was compromised, certified copy of the compromise decree being Ext E in this suit; under the terms of the said compromise decree defendants 2 to 4 were directed to pay Rs. 275/- to defendant appellant herein within 8 months of the decree, failing which the defendant appellant will take dell-very of possession of the said properties; no money was however paid in terms of the said compromise, and thereupon on October 28, 1954 the defendant appellant, in execution of the said decree, took possession of the disputed properties in Execution Case No. 33 of 1954, certified copy of the writ of delivery of possession in the said execution case being Ext. F in this suit.
On November 23, 1954, the plaintiffs filed the present suit praying for a declaration to the effect that the plaintiffs are not bound by the said mortgage or the decree passed in the said previous suit, and alternatively for redemption of the suit properties’. Defendants 2 to 4 were ex parte. Defendant No. 1 (appellant herein) alone contested the suit. The defence,–taken, by the defendant appellant herein,–was that the Ka schedule properties were not absolute Debottar of the deity plaintiff No. 1, but private properties of defendants 2 to 4; that the said defendants 2 to 4 as Kartas of the Hindu joint family, took loan for valid legal necessity; that the decree in the said mortgage suit for redemption is valid and binding and was made final, and the suit properties therefore cannot be redeemed, as claimed in the suit.
4. The trial Court held that the Ka schedule properties were not absolute Debottar properties of the deity plaintiff No. 1; that the plaintiffs are bound by the mortgage and decree
an the said suit for redemption, that the said decree was made final and there was no scope for redemption and accordingly the plaintiffs’ suit was dismissed by the trial Court. In appeal, the learned lower appellate Court,–while confirming the trial Court’s findings that the Ka schedule properties were not absolute Debottar properties of the deity, plaintiff No. 1 and that the plaintiffs are bound by the mortgage and the said decree,–held that yet the plaintiffs are entitled to redeem the disputed properties on payment of the mortgage money, and accordingly in reversal of the trial Court decision, decreed the plaintiffs’ suit for redemption. Hence this second appeal by the defendant No. 1.
5. The main point, for consideration in this Second appeal is whether the right to redeem the disputed properties was extinguished by the said compromise decree made in the Title No. 309/1950 (Ex. E)’. Thus it is only upon the construction of the said decree that the result of this appeal depends. The terms of the compromise decree were that the plaintiffs in the said Title Suit No. 309/1950 (mortgagors under Ext. A) will within eight months from the date of the decree, that is to say, April 30, 1953, either pay to the defendant mortgagee (defendant No. 1 appellant herein) or deposit in Court a sum of Rs. 275/-: that if the said mortgagors so pay or deposit in terms of the decree, the mortgage bond will stand redeemed; that if the said mortgagors fail to do so, then the right to redeem will be lost; that the mortgagee, (defendant appellant herein), without having to make the decree final, would take possession of the mortgaged properties through Court (Bibado pina Decree Chudantare …. Dakhel Nibe).
6. It was contended, on behalf of the defendant appellant, that the said compromise decree was by itself a self-contained final decree; that the defendant appellant having already taken possession on October 28, 1954, in execution of the said decree in Execution case No. 33 of 1954 as aforesaid, there is already a foreclosure by such delivery of possession, and accordingly the mortgage is dead and is no longer subsisting; that the mortgagors are thus debarred from all right to redeem the mortgaged properties.
7. The undoubted position in law is that Order 34, Civil Procedure Code is not exhaustive and it is open to the parties to settle by compromise the form of the decree as has been done in the present case by which the right to redeem was extinguished by the terms of the decree itself as aforesaid; the parties can agree that the decretal amount shall be payable by the judgment-debtor in the manner laid down in the compromise decree itself, and it is also open to them to agree that the very first decree passed in the suit shall be an executable decree without having a further final decree and thus the parties can do away with the necessity of the passing, first, of a preliminary decree and then, of a final decree as provided in Order 34 Civil Procedure Code.
If a decree is passed in accordance with Order 34, Rule 4, then such a decree is incapable of execution until a final decree is passed) under the provisions of Rule 5 of the Older; but from this it does not follow that in a mortgage suit the Court is powerless to pass a consent decree otherwise than in accordance with the provisions of Order 34 of the Code; Order 23, Rule 3 gives ample power to the Court to pass a decree in accordance with the terms of compromise; where a consent decree in a mortgage Suit provides that the properties shall remain mortgaged and hypothecated and that if the money due to the plaintiff is not paid by a certain date he would be entitled to take out execution, and default is made in payment of the money, as in the present case, it is not necessary for the party to go through the formality of taking a final decree: Ghulam Amir v. Mt. Masuda Khatun, AIR J.943 All 32.1; Mt. Arunbati Kumari v. Ram Niranjan Marwari, 58 Ind Cas 299 : (AIR 1921 Pat 320).
8. This point is also covered by a Division Bench decision of this Court in Somanath Pradhan v. Sanno Govindo Misra, AIR 1959 Orissa 122, where it was held that unless there is an order for foreclosure or a decree for sale, the mortgage will, in, the eye of law, subsist; once the mortgage is in subsistence, the right of redemption is not extinguished; if the right of redemption is not extinguished, successive suits for enforcing that right can be filed; the right of redemption on the part of the mortgagor and the right to foreclose on the part of the mortgagee are co-extensive; the right to redeem can only be destroyed as provided under Section 60 of the, Transfer of Property Act, that is, by the act of parties or by a decree of Court. On the facts of that particular case it was decided that no final decree having been passed in the suit the right of redemption was not extinguished. The distinguishing features, on, facts, are that in the said Division Bench case it was not on a compromise decree, as in the present case; here the decree itself was a composite decree being a self-contained decree containing the preliminary and final decree as appears from the terms of the said compromise stated above; in the Division Bench case, it was only a preliminary decree which was passed as required under Order 34, Rule 7 Civil Procedure code, and therefore the decree was never made final; that apart in the present case, the mortgagee (defdt. appellant herein) had already taken possession in execution of the said decree, in terms of the compromise, which provided for such execution without having the final decree, as contained in the said compromise decree itself. In the present case, the striking distinguishing feature,–that the said compromise decree was made executable, without obtaining a final decree,–settles the position that the right to redeem was extinguished by the compromise decree itself, and there was no scope left for redemption,
9. The defendant appellant’s contentions, an the construction of the compromise decree in the previous suit, where sought to be repelled on behalf of the plaintiff-respondents, submitting that the compromise decree amounted to a clog on equity of redemption, and therefore unenforceable, in that an illegal term in an agreement consented to by parties and embodied in a consent decree does not make that term enforceable or a defence in a subsequent suit. This argument, however, has no force in the face of the position that whereas the time-limit permissible under Order 34 Rule 7 is six months for payment of the mortgage dues, in the present case under the compromise decree, the time allowed to the mortgagors for payment was eight months, failing which the decree would be executable without getting a final decree. On the facts of this case, there was no clog on the equity of redemption. If the right to redeem was indefinitely postponed, then it would amount to penalty or pressure on the mortgagors right to redeem which might be challenged as illegal; but in the present case, as I have already discussed above, having regard to the terms of the compromise decree giving time to the mortgagors to pay up the mortgage dues within eight months from the date of the compromise decree, there is no clog on the equity of redemption. Thus, there is no substance in this point, urged on behalf of the plaintiff-respondents.
10. Moreover a point was raised on behalf of the plaintiff-respondents,–although no cross-objection was filed,–contending that the findings of the Courts below, that Ka schedule properties are not absolute Debottar, are vitiated by wrong inferences and erroneous application of law; the plaintiff-respondents’ point is that the entries fin C. S. Khatian Ext. 1 and Ext. 1-a show entries in the name of the deity; that mere user does not make it other than Debottar. The plaintiffs’ contention is that the Courts below should have held that they were absolute Debottar properties. I do not, however, accept the plaintiff-respondents’ contention, and after carefully considering the concurrent findings of both the Courts below on this aspect of the question, I find no reason to interfere with their findings, based on inferences correctly drawn, as appears from their respective judgments and for valid reasons as discussed therein, which I need not repeat herein.
11. In this view of the case, the decision
of the learned lower appellate Court,–whereby he decreed the plaintiffs’ suit for redemption,–is contrary to law. I, therefore, set aside the decision of the learned lower appellate
Court, and restore the decision of the trial
Court, dismissing the plaintiffs’ suit. This appeal is, accordingly, allowed with costs through