JUDGMENT
V.C. Daga, J.
1. This revision raises the vexed question whether the right of redemption was barred by law of Limitation. The revision application is directed against the order dated 17th Oct. 1990, passed by the Joint Civil Judge, S.D., Kolhapur, in Final Decree proceeding registered as Application No. 21 of 1975, whereby an application moved under Order XXXIV Rule 8 of the Code of Civil Procedure (CPC for short) praying for final decree in Special Civil Suit No. 78 of 1969. wherein preliminary decree was drawn on 18-1-1972, came to be rejected holding it to be barred by Law of Limitation. Hereinafter the parties will be referred to as arrayed in the original suit.
OUTLINE CHRONOLOGY
2. The outline chronology giving rise to the present Revision Application is as under :
The suit property is a building bearing City Survey No. 281 situated at B Ward, Gujari, Kolhapur. The said property was originally owned by one Shri Pandit Govind Shinde Naik.
The suit properly was mortgaged with original defendant-deceased defendant No. 1 late Shri Achaldas Oswal for a period of 5 years. The petitioner (Original plaintiff) had filed a suit registered as Special Civil Suit No. 78 of 1969 against the defendant for redemption of mortgage. Preliminary decree was passed on 18-1-1972 wherein it was directed that the plaintiff shall deposit Rs. 11,000/- in the Court on or before 17-4-1972. The plaintiff was granted liberty to apply for appointment of the Commissioner in the Final Decree proceeding to take account of the expenses incurred by the mortgagee/defendant No. 1 in respect of the mortgage security including payment of municipal taxes and repairs. It was also directed in the preliminary decree that order regarding possession of the suit property and costs of the suit be passed in the Final Decree.
3. The plaintiff could not deposit the aforesaid amount in the Court on or before 17-4-1972. He made an application to the Court being Misc. Application No. 85 of 1972 for extension of time to make payment as directed in the preliminry decree. It appears that on 30-1-1975, the application made in this behalf was rejected by this Court. The plaintiff did not challenge this order of rejection but could obtain permission to make necessary deposit without prejudice to the rights and contentions of the parties. Accordingly, deposit was made by plaintiff on 6- 2 -1975.
4. The plaintiff decree holder In support of his application pleaded that the application for final decree having been filed within a period of 3 years from the date of deposit made under the order of the Court dated 6-2-1975 was well within the period of limitation. The plaintiff thus prayed and contended that the defendant/J.D. be directed to accept the amount of mortgage money and be further directed to deliver the possession of the mortgaged property to the plaintiff decree holder. He also prayed for taking fresh accounts to determine the amount due and payable by him to the mortgagee and prayed for its inclusion in the final decree, so as to enable him to discharge his liability as per final decree.
5. The original defendant No. 1 had filed his objection resisting the final decree proceedings and contested the said application filed by the plaintiff (D.H.). The defendant in defence had pleaded that the final decree proceedings were not maintainable under the provisions of Order 34, Rule 8 of C.P.C. being barred by the Law of Limitation. He also pleaded in defence that the earlier application seeking extension of time to deposit money as per preliminary decree having been dismissed by order dated 30-1-1975 the proceedings seeking final decree could not be allowed to be proceeded with. In his submission, the deposit made on 6-2-1975 in the sum of Rs. 11,000/- in Civil Misc. Application No. 85 of 1971 was accepted by the Court without prejudice to the rights of defendant. Consequently, he had finally prayed that application seeking final decree should be dismissed with costs.
6. On the basis of the rival pleadings, the learned Civil Judge, SD, Kolhapur, was pleased to frame Issues relevant to the pleadings of the parties. But proceeded to answer only one issue as to whether the application seeking final decree was barred by law of Limitation?
7. The learned Civil Judge, S.D. Kolhapur, after hearing parties to the proceedings was pleased to hold that the appli-
cation was barred by the Law of Limitation. In this view of the matter, application came to be dismissed vide order dated 17-10-1980. The learned Judge while dismissing the application relied upon judgment of this
Court in the case of Moru Gujar v. Gangabal Ramchandra Lilachand and another Judgment of Nagpur High Court in the case of Hirekhan v. Narbada Bai, AIR 1952 Nag 117. The aforesaid order of the Court below is a subject matter of challenge in the present revision application filed under Section 115 of the C.P.C.
THE ARGUMENTS
8. The learned Counsel appearing for the petitioner — original plaintiff contended that in a redemption suit only preliminary decree was passed. The final decree as contemplated under Order 34, Rule 8 was to be passed. The trial Court having passed the preliminary decree could not have dismissed the suit filed by the plaintiff holding it to be barred of limitation. The learned counsel further contended that having regard to the provisions of Section 60 of the Transfer of Property Act, right of redemption could not be extinguished in absence of any decree passed by the competent Court. The decree in that behalf has to run strictly in accordance with form prescribed for the purpose. He urged that even though the application for extension was dismissed on 30-1-1975, the same did not preclude the Court below from passing final decree.
9. In his submission so long as the decree holder is not debarred from all his rights by a decree, his right to redeem mortgage property cannot be treated as extinguished in this view of the matter, in this submission , it was open for the petitioner to make payment in the Court at any time before the final decree debarring the petitioner from his right to redeem mortgaged property was passed.
The learned Counsel further contended that the judgments relied upon by the Court below never dealt with the question relating to usufructuary mortgage. In his submission, the case in question being that of usufructuary mortgage the same ought to have been considered on the touchstone of provisions of Section 34, Rule 8 of the C.P.C. He, therefore, urged that the Court below seriously erred in holding that the application/
proceeding seeking final decree was barred by the Law of Limitation having been filed beyond the period of limitation prescribed under Article 137 of the Limitation Act.
10. Per contra, the learned Counsel for the respondents raised a preliminary objection and urged that the original plaintiff having filed another civil suit bearing Special Civil Suit No. 43 of 1983 for redemption of mortgage claiming identical reliefs claimed in the earlier Special Civil Suit No.78 of 1969 could not have maintained this revision petition. He further went on to contend that at any rate after having withdrawn the said second suit on 27-6-2001 I.e. during the pendency of the present proceedings, the revision petition had to be dismissed with costs on the touchstone of doctrine of waiver without going into the merits of the matter.
11. The learned Counsel for the respondent tried to support the impugned order and went on to contend that the application seeking final decree was barred by limitation having been filed long after expiry of 3 years from the date fixed for payment in a preliminary decree. It was urged that Article 137 of the Limitation Act would be applicable to such a cases and limitation would begin to run from the date of payment prescribed in the preliminary decree. In his submission, the mortgage money in the sum of Rs. 11,000/- ought to have been deposited within 3 months i.e. on or before 17-4-1992 as prescribed in the preliminary decree. The order dated 30-1-1975: whereby the request for extension of time was refused would operate as res judicata between the parties having become final and conclusive.
12. The learned counsel for the respondent as a last straw also pressed into service the provisions of Order 39. Rule 11 of the C.P.C. and placed reliance on the Judgment of this Court in the case of Ratnakar D. Patade v. Smita Pandurang Ravi and contended that If party commits default in complying with the order of the Court or contravenes it, then, the consequences provided in Order 38, Rule 11 of the C.P.C. had to follow. In his submission, non-payment of mortgage money, within stipulated period was the non-compliance of the terms of decree warranting application of Order 39, Rule 11 of the C.P.C. In short, he tried to support the Impugned order and prayed for dismissal of this revision application with
costs without touching the Impugned order.
THE PRINCIPAL ISSUE
13. The substantiative issue on the pleadings and rival contentions between the parties is as under :
Whether any period of limitation applies for preparation of final decree for redemption of usufructuary mortgage?
THE STATUTORY FRAMEWORK
In order to appreciate the rival contentions it would be appropriate to examine the statutory provisions contained in the various legislations dealing with the subjects such as Transfer of Property Act, Indian Limitation Act, 1963 in the backdrop of the provisions of Rules 7 and 8 of Order 34, of the C.P.C.
Transfer of Property Act (T.P. Act for short) Chapter IV of the Transferee of Property Act deals with mortgages of immovable property and charges. The general definition of mortgage is contained in Clause (a) (of Section 58) in which the general legal effect of a mortgage is predicated, the extract of which reads as under :
“A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to pecuniary liability ………”
The definitions of various classes of mortgage contained in the several clauses prescribes the form in which the various mortgages are to be expressed. They are expressed and understood in the manner appearing hereinafter:
Characteristics of several mortgages :–
(a) Simple mortgage.
(b) Mortgage by conditional sale.
(c) Usufructuary mortgage.
(d) English mortgage.
(e) Equitable mortgage.
(f) Anomalous mortgage.
Since the nature of mortgage involved in this case is usufructuray mortgage, let me turn to Section 58(d) of the T.P. Act to find out that characteristics of usufructury mortgage :
“Usufructuary mortgage — Where the mortgagor delivers possession or expressly
or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgaged money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money or part in lieu of interest or partly in payment of the mortgage money the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.”
Indian Limitation Act. 1963.
Part V of the Limitation Act 1963 deals with the suits relating to immovable properly. The relevant Article for the purpose of this petition would be Article 61 which reads as under :
(See table on next page)
Order XXIV
Suits relating to mortgages of Immovable Property.
In order to appreciate the rival contentions, it would be appropriate to refer to the provisions contained in Rules 7 and 8 of Order 34.
Preliminary decree in redemption suit –
(1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree –
(a) Ordering that an account be taken what was due to the defendant at the date of such decree for-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him and
(iii) other costs, charges and expenses properly Incurred by him upto that date, in respect of his mortgage security, together with interest thereon; or
(b) declaring the amount so due at that date : and
(c) directing
(i) that if the plaintiff pays into Court the amount so found or declared 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
Description of suit
Period of limitation
Time from which period begins to run
By a mortgagor–
(a) to redeem or recover possession of immovable property mortagged :
Thirty years.
when the right to redeem or recover poossession accures.
(b) to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for a valuable consideration.
Twelve years.
When the transfer becomes known to the plff.
(c) To recover surplus collections received by the mortagagee after the mortgage has been satisfied.
Three years.
When the mortgagor re-enters on the mortagaged property.
Art. 137.
Any other application for which no period of limitation is provided elsewhere in this Divison
Three years.
When the right to apply accures.
Code of Civil Procedure : (C. P. C. for short)
The relevant provisions of C.P.C. relevant for the purpose of this petition are as under :
S. 148
” Enlargement of time-Where any period is fixed or granted by the Court for doing any act or allowed by this Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.”
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 defendant shall deliver up to the plaintiff or such persons as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required re-transfer the property at his cost free from the mortgage and from all encumbrances created by the defendant or any person claiming him, or where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property : and
(ii) that, if payment of the amounts found or declared due under or by the preliminary decree is not made 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 subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree –
(a) in case of a mortgage other than a usufructuary 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
(b) In the case of mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all rights to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under Sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and Interest.”
Rule 8 reads thus :
8. “Final decree in redemption suit –
(1) Where, before a final decree debarring the plaintiff from all rights to redeem
the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 7 , the Court shall, on application made by the plaintiff in this behalf, pass a final decree, or, if such decree has been passed an order –
(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary –
(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree.
and also, if necessary
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this rule, the Court shall not pass a decree under Sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in Sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of purchase money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order to an order for re-payment of the amount of the purchase money paid into Court together with a sum equal to five per cent thereof.
(3) Where payment in accordance with Sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf –
(a) in case of a mortgage by conditional sale or of such an anomalous mortgage as is herinbefore referred to in Rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property, and, also if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property ; or
(b) in case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) to be paid into Court and applied in payment of what is found due to the defendant, and the balance, if
any, to be paid to the plaintiff or other persons entitled to receive the same.”
DISSECTION OF THE STATUTORY PROVISIONS
In case of a simple mortgage : (a) the mortgagor undertakes personal liability, (b) No possession is delivered by him, (c) There is no foreclosure, (d) No power of out of Court sale is bestowed on the mortgagee but decree for sale of mortgaged property is required to be obtained. In case of mortgage by conditional sale; (i) the mortgagor ostensibly sells the mortgaged property (ii) the condition is that the sale shall be absolute in default of payment on a particular date or on condition that on such payment being made the sale shall become void or on condition that such payment being made the buyer shall transfer the property to the seller. The remedy of mortgagee is by foreclosure and not by sale. In case of usufructuary mortgage: (a) there is a delivery of possession to the mortgagee. (b) He is to retain possession until re-payment of money and to receive rents and profits or part thereof in lieu of interest, or in payment of mortgage money, or partly in lieu of Interest and partly in payment of mortgage money, (c) There is redemption when the amount due is personally paid or is discharged by rents or profits received, (d) There is no remedy by sale or foreclsoure. So far as English mortgage is concerned (i) it is followed by delivery of possession (ii) There is a personal covenant to the amount (iii) It is effected by absolute transfer of property with a provision for re-transfer in case of repayment of the amount due. (iv) The remedy is by sale not by foreclosure (v) Power of sale out of Court is conferred on certain person on certain circumstances. Equitable mortgage, (a) It is created by depsoit of title deeds, no delivery of possession takes place, (b) It is made to secure a debt or advances already made or to recover further advances, (c) No registration is necessary even if there is a writing recording deposit, (d) The remedy is by sale and not by foreclosure. Anomalous mortgager : It now includes a simple mortgage usufructuary and mortgage by conditional sale. (b) In this type of mortgage possession may or may not be delivered. (iii) The remedy is by sale or by foreclosure, if the terms of mortgage permit it.
14. In the above backdrop, it is not in dispute that the form of mortgage involved in this case is usufructuary mortgage. The decree in question being of redemption of mortgage, it is necessary to examine the provisions of the Civil Procedure Code. The Order 34, Rules 7 and 8 deal with the issue involved in this petition . Order 34, Rule7(ii) provides that the suit for redemption by a mortgage if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed or the plaintiff falls to pay within such time as Court may fix, the defendant shall be entitled to apply for a final decree; (a) in case of a mortgage other than a usufractuary mortgage, a mortgage by conditional sale, or an anomalous mortgage, the terms of which provide for foreclosure only and not for sale, that mortgaged property be sold or (b) in case of mortgage by conditional sale or such an anomalous mortgage that the plaintiff be debarred from all rights to redeem the property. It follows that in the case of a usufructuary mortgage, a mortgagee is not entitled to apply for a final decree. The procedure to be followed by the mortgagee is provided in Sub-clause (3) of Rule 8. He has to make an application for final decree declaring the plaintiff and all persons claiming under him are debarred from all rights to redeem the mortgage property in the case of a mortgage by conditional sale or of an anomalous mortgage the terms of which provide for foreclosure only and not for sale. The plaintiff can also be ordered to put the defendant in possession of the mortgaged property if necessary. In the case of any other mortgage, not being a usufructuary mortgage, the mortgagee can file an application to pass a final decree that the mortgaged property, or a sufficient part thereof be sold, and the proceeds of the sale be paid into Court and applied in payment of what is found due to the defendant, and the balance , if any, be paid to the plaintiff or other persons entitled to receive the same. Sub-rule (1) of Rule 8 confers a right on the mortgagor-plaintiff to make deposits of the amounts due from him under Sub-rule (1) of Rule 7 and to make an application for final decree at any time before a final decree debarring the plaintiff from all right to redeem mortgaged property has been passed or before the confirmation of sale held in pursuance of a final decree passed under Sub-rule (3) of Rule 8. Here again. It is seen that a usufructuary mortgagee is not entitled to file an application. In other words, only a mortgagor can apply to the Court to pass a final decree on payment of amount found or declared due under the preliminary decree. On making such deposit and on filing the application as contemplated in Sub-rule (1) of Rule 8, mortgagor plaintiff can request the Court to order the mortgagee to put him in possession of the mortgaged properties. The necessary consequences is that so long as the right subsists, though there is a delay in compliance of the condition imposed in the preliminary decree, the right to redemption given to the mortgagor is not lost. It will be debarred only on expiry of the period of limitation prescribed under Limitation Act. The reasons are obvious as stated hereinabove. Order 34, Rule 8(3) does not give any rights to the mortgagee, but right is given only to the mortgagor to seek redemption of the usufructuary mortgage in a decree under Rule 8(3) of Order 34. The mortgagee having been in possession and enjoyment of the mortgaged property is not disabled by the preliminary decree. On the other hand liability continues to subsist against the mortgagor. Therefore, it is upto the mortgagor to redeem the mortgage. Till then his liability under the mortgage continues to run on the estate. It is, therefore, clear that the limitation to file an application under Order 34, Rule 8(1) to pass a decree for redemption, other than the preliminary decree for redemption of usufructuary mortgage starts running and continues to run its course from the date of expiry of the period fixed in the preliminary decree, unless it is stayed or suspended or the time prescribed in the preliminary decree is extended by order of the Court. In its absence on the expiry of the limitation of three years from the date fixed in the preliminary decree is expired under Article 137 of Schedule to Limitation Act, 1963 the plaintiff is debarred to enforce the right to pass the final decree. But in the case decree for redemption of usufructuary mortgage no limitation begins to run until deposit is made though there is a conditional preliminary decree and default committee by the mortgagor for compliance thereof.
15. Having examined the above legal position , let me examine the question as to how and when the rights of mortgagor to redeem gets extinguished. The answer to
this question depends upon correct appreciation of Section 60 of the Transfer of Property Act confers right of redemption on the mortgagor. The proviso to Section 60 reads as under :
“Provided that the right conferred by this Section had not been extinguished by the act of parties or by a decree of a Court.”
It is thus manifestly clear that right of redemption will be extinguished (i) by act of the parties or (ii) by the decree of Court.
The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage Itself subsists. As held by the Privy Council in Raghunath Singh’s case , the right of redemption can be extinshished as provided in Section 60, T.P. Act and when It is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose.
AUTHORITIES ON THE ISSUE :
In case of of Thota China Subba Rao v. Mattapalli Raju, AIR 1950 FC 1, it is observed as under :
“The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage itself subsists. The light or redemption can be extinguished as provided in Section 60 and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the enquiry of redemption is so extinguished, a second suit for redemption of limitation, is not therefore, barred ………..”
“The Full Bench of the Bombay High Court had also in an earlier case reported in AIR 1948 Bombay 226, Rajaram Vithal v. Ramchandra Pandu, taken a similar view. In the Bombay case the first suit for redemption was dismissed as abated on account of the death of the mortgagor. The second suit was brought by the heirs of the mortgagor. An objection having been raised that the dismissal of the earlier suit which had been dismissed as abated operated as bar, it was held that the general terms of Order 22, Rule 9 could not override the specific directions of Section 60 of T.P. Act. Their Lordships expressed the view that so long as the relationship of mortgagor and mortgagee continues and so long as the right to redemption has not been extingusihed by the decree the Court or by the act of the parties, the mortgagor is enti
tled to go to a Court of law to enforce his right. The abatement of suit, according to their Lordships was not a decree of the Court extinguishing the right of dedemption and as such such abatement would not operate as a bar in the second suit for the same relief. No case law to the contrary could be pointed out on behalf of the respondents.
The legal position thus well settled that the dismissal of the earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a second suit for redemption and that such second suit and for that matter every successive suit for redemption to redeem the same mortgage can be brought so long as the mortgage subsists and the right of redemption is not extinguished by efflux of time by a decree of the Court passed in the prescribed form.”
The question whether Rule 8(1) is applicable to the redemption suit of usufructary mortgage had also arose for consideration (in) Angammal v. Muhammed Sulaiman, AIR 1946 Madras 38. A preliminary decree in that case was passed on 15th Oct. 1935 and the time fixed for payment was 15th Jan. 1936. The plaintiff did not deposit the amount on or before that date. Application for final decree was filed in 1943 and the amount was deposited towards the end of 1942. The trial Court and the first appellate Court dismissed the petition. In second appeal, the High Court held that in a suit for redemption in a usufructuary mortgage the mortgagor can even after time fixed for payment by the preliminary decree has expired, take advantage of Order 34, Rule 8(1) of the C.P.C. by exercising the right of making the payment of the amount due from him as fixed under Rule 7(1) at any time before the final decree debarring him from all right to redeem the mortgaged property has been passed. It is observed as under :
“Prima facie, even in the case of a usufructuary mortgage the mortgagor would seem to have a right of paying under Rule 8(1) the amount fixed under Rule 7(1) and ask for consequential reliefs.”
A Division Bench of the Patna Court had also considered the same question in Md. Azimi v. Md. Sultan. AIR 1946 Patna 99. That was also a case where the deposit was made several years after the date fixed in
the preliminary decree. It was held thus :
“In the case of a usufructuary mortgage the mortgagor need not ask for extension of the time fixed for payment by the preliminary decree under the provisions of Sub-rule (2) of Rule 7. The provisions of that sub-rule apply in the case of mortgage for foreclosure or sale only. The effect of extension of the said time under the said sub-rule is postponement of time for passing the final decree for forclosure or sale, as the case may be, which is not allowed in the case of a usufructuary mortgage.”
It is further stated :
“It is in the case of a mortgage decree by conditional sale or anomalous mortgage the terms of which provide for foreclosure only where the final decree declares the plaintiff debarred from all right to redeem the mortgaged property or, where in pursuance of the final decree the mortgaged property has been sold and sale is confirmed, that the right to redeem is extingushed. In other cases, the right to redeem the mortgaged property subsists, and so long the right is there, it is always open to a mortgagor to avail himself of that right on payment of the amount declared due under preliminary decree.”
The Supreme Court (Allahabad High Court) had occasion to consider similar questions in the case of Yashpal Singh v. Ved Prakash (1988) 2 Civil LJ 356, wherein the Supreme Court has observed as under :
“Similar observations have been made in AIR 1946 Patna 99 and in AIR 1954 Mysore 118, Rudrappa v. Puttalakshmma, these two cases have also Indicated that a preliminary decree in a suit for redemption of an usufructuary mortgage under Clause (c)(i) of Rule 7(1) of Order XXXIV of the Civil Procedure Code for payment of the amount declared due under the decree. But default in making payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff/mortgagor from all right to redeem the mortgaged property.
In , Loknath Misir v. Smt. Daulata Kuer, a learned Single Judge of this Court has observed in para 4 as below :–
…………. Even in case where the penalty of foreclosure is rightly imposed e.g. in the case of mortgages by conditionally sale, it is not the preliminary decree itself which extinguishes the right of redemption finally. Even under the law as it stood prior to the amendment, a final decree had to be passed under Order XXXIV, Rule 8 before the right to redeem could be lost. The preliminary decree simply indicated what consequences would follow in the event of non-payment of the mortgage money. But those consequences did not take effect automatically on default of payment within three automatically on default of payment within the prescribed time. The passing of the final decree was condition precedent to the coming into existence of those consequences. Had it been the intention of law to let those consequences follow automatically, it would have been unnecessary to enact Rule 8, Order, XXXIV which provides for preparation of the final decree, I am, therefore, of the opinion that even in cases where the Court could legitimately include a clause in the preliminary decree to the effect that in case of non-payment of the mortgage money by the depositor the right to redeem would be lost, such right could be extinshished unless the final decree was passed. Much less such a right could be lost by a preliminary decree in which the clause was improperly included.”
16. The Supreme Court had occasion at consider similar question in the case of Parameshwaran Pillai v. Sumathi, . The Supreme Court has held as under :
“The proceeding in the preliminary decree does not get terminated by dismissal of the first application for passing of final decree on or for non-prosecution. Till date of passing the final decree and executed or till remedy is barred by limitation under Article 137 of the Schedule to the Limltatioin Act, 1963 the Court has power and jurisdiction to entertain the application to pass the final decree. At any time before the remedy is barred, it is open to the plaintiff to deposit the redemption money under the preliminary decree. The dismissal of the earlier application or non-prosecution, therefore, does not per se bar the right of the plaintiff. But if remedy to enforce preliminary decree for the redemption is barred by the limitation, thereafter the right remains unenforceable. The deposit therefore, is non est and the Court cannot proceed to pass final decree as the remedy is lost. Therefore, the mere dismissal of the first application for
non-prosecution and withdrawal of the redemption money deposited thereunder per se creates no bar to entertain second application. Equally instead of availing the remedy of depositing the redemption amount in the pending proceedings under Rule 8(1) of Order 34, the respondent Instituted an independent suit for redemption per force, though it does not operate as bar to maintain the application to pass final decree, Court cannot proceed further with the application. Otherwise conflicting decisions would arise giving rise to multiplicity of proceedings. The Court would stop to proceed further in the matter. In view of finding that the application to pass final decree Is barred by limitation, the trial Court has no jurisdiction to proceed with the application under Rule 8(3) of Order 34, and pass final decree.
PRINCIPLES DERIVED FROM CASES.
The principles derived from the above discussed cases is that a preliminary decree in a suit for redemption of a usufructuary mortgage may under Clause (c)(l) of Rule 7(1) of Order 34 of the C.P.C. fix a time for payment of such amount declared due under decree, but default in making payment of the amount declared under the decree within time fixed does not operate to debar the plaintiff mortgagor from his right to redeem the mortgaged property unless right of redemption is extinguished either by act of parties or of the decree of the Court.
APPLICATION OF PRINCIPLES TO THIS CASE/FINDINGS :
With the above principles in mind, let me once again turn to the facts of the case at hand. The amount of mortgage money was not deposited by the plaintiff D.H. (Petitioner herein) within the prescribed time prescribed in the preliminary decree. One application seeking extension of time to make deposit was rejected by the Court below. However, the Court below accepted the amount of mortgage money with the result the amount of mortgage money was paid on 6- 2-1975. The mortgage in question being usufructuary mortgage, there was no right in favour of mortgagee to apply for debarring the mortgagor/plaintiff from his right to redeem the mortgaged property. It is not in dispute that the period prescribed for redemption of usufructuary mortgage under the Limitation Act is 30 years. The mortgage bond in this case is 23-1-1947. The suit was filed on 11-3-1969. It was decreed. Preliminary decree was passed on 18-1-1972. Mortgage money was paid on 6-2-1975. The application for final decree registered as Misc. Application No. 21 of 1975, filed in the year 1975 came to be dismissed by the impugned order on 17th Oct. 1990. The application filed under Order 34, Rule 8 made by the plaintiff. In this view of the matter, the Court below wrongly relied upon the judgment of this Court in the case of Parmeswaran Pillai’s case (AIR 1996 SC 191) (supra) and that of Hirekhan v. Narmada Bai (AIR 1952 Nagpur 117) (supra), as, in both these cases Courts below were dealing with a decree of redemption other than the usufructuary mortgage. Consequently, the Court below fell in error.
17. The submissions made by the learned Counsel for the respondents on provisions of Order 30, Rule 11 of C.P.C. is misplaced. Similarly, absence of challenge to the order dated 30-1-1975 whereby the trial Court refused to extend the period to deposit mortgage money has no legal effect. Even withdrawal of the 2nd suit cannot affect the merits of this revision petition. The right of the plaintiffs to redeem the mortgage did not extinguish. It continued to subsist, as such the application seeking final decree was very much within limitation.
CONCLUSION
It is rightly said that as per settled legal position. “Once a mortgage is always a mortgage” unless equity of redemption is so extinguished as provided under Section 60 of the Transfer of Property Act.
ORDER
For the aforesaid reasons, I allow the revision application and set aside the impugned order and remand the matter back to the Court below with direction to dispose of the same on merits in accordance with law after hearing the respondents.
Parties through their Counsel are directed to appear before the trial Court on 5-12-2001.
Rule is made absolute in terms of the above order with no order as to costs.