Second Appeal No. 568 of 1994

14th April, 1995

Petitioner Counsel: B. P. Apte with R. S. Apte,
Respondent Counsel: Mrs. A. A. Agarwal, No. 1.

Cases Cited:
(1998) 1 Mad LJ 407 : 1988 TLNJ 195 (Rel. on) 18 AIR 1981 Ker 135 (Rel on) [Para 18]
AIR 1978 Mad 246 (Rel on) [Para 18]

JUDGMENT

JUDGEMENT :-This second appeal is preferred the judgement and deceree dated 9th August, 1994 passed by the VII additional District Judge, Pune in Civil Appeal No. 661 of 1993, whereby the lower appellate Court confirmed the judgement and decree dated 21st August, 1993 passed by the Civil Judge, Junior Division, Junnar, in Regular Civil Suit No. 24 of 1962.

2. This is a matter where the plaintiff filed the aforesaid suit for redemption of mortgage in the year 1962 for redeeming the mortgage of an agricultural land for a consideration of Rs. 500/- and for more than 30 years this matter was moving to and fro on technical grounds from trial Courts and lower appellate Courts and it has ultimately landed before this High Court in this second appeal.

3. Few facts which are material from the point of view of disposal of this appeal are as under:

Appellant in this case is original defendant. Respondent No. 1 (original plaintiff) filed the aforesaid suit before the Civil Judge, Junior Division, Junnar, for redemption of mortgage and also for possession of the suit property. In the said suit, defendant No. 2 was joined as a party. Defendant No. 2 had no objection to redeem the suit property. In the suit, it was contended on behalf of the plaintiff that the suit land was mortgaged for Rs. 500/- and since defendant No. 2 refused to redeem the said mortgage in spite of his readiness and willingness to return the said amount of Rs. 500/-, the plaintiff had filed the aforesaid suit for redemption of the mortgage. It may be kept in mind that the mortgage is a usufructuary mortgage in the sense that after accepting Rs. 500/-, the mortgagor handed over possession of the suit property to the mortgagee and allowed him to enjoy the usufruct of the mortgage in lieu of payment of interest. The aforesaid suit was decreed on 23rd March 1964 ex parte.

4. Against the said ex parte decision, defendant No. 1 filed Misc. Application No. 4 of 1964 for setting aside the ex parte decree. However, the said application for setting aside the ex parte decree was dismissed on 22nd March, 1966. Against the aforesaid decision of dismissal of the Misc. Application No. 4 of 1964, defendant No. 1 preferred Misc. Civil Appeal No. 64 of 1966 and the said appeal was allowed and the ex parte decree passed by the trial Court was set aside subject to the condition that defendant No. 1 was to pay the costs within one month i.e. on or before 2-4-1967. It appears that defendant No. 1 paid the said amount on 3-4-1967 and not on or before 2-4-1967.

5. It appears that in the meantime plaintiff preferred an application before the trial Court for drawing final decree in Regular Civil Suit No. 94 of 1962. While deciding the said application, trial Court referred to the preliminary decree dated 23rd March, 1964 passed by the Civil Judge, Junior Division, Junnar, and in para 4 of his judgment, the trial Court referred to the fact that against the said preliminary decree, defendant No. 1 had preferred an appeal and in the said appeal a conditional order was passed on 2-3-1967 by the lower appellate Court to the effect that on depositing by defendant No. 1 costs on or before 2-4-1967, the judgment and decree passed by the trial Court on 23-3-1964 be set aside. However, in para 5 of the said judgment

of the trial Court, it was observed that since defendant No. 1 failed to pay the costs as per to order of the lower appellate Court on 2-4-1967 as per the decision of the lower appellate Court dated 2-3-1967, the preliminary decree dated 23rd March, 1964 passed by the trial Court stood confirmed. In view of this finding, the trial Court passed the final decree. While passing the final decree, the trial Court took into consideration an objection of defendant No. 1 that as per the order dated 2-3-1967, lower appellate Court had granted time to defendant No. 1 to pay the costs on or before 2-4-1967 and since 2-4-1967 happened to be a holiday, defendant No. 1 paid the amount of costs on 3-4-1967. Defendant No. 1 contended that in view of this, applying the principles under the General Clauses Act and the Limitation Act, the said payment was made within time and, therefore, the decree passed by the trial Court dated 23-3-1964 ought to be set aside. However, the learned Judge of the trial Court rejected the aforesaid contention as advanced by defendant No. 1 and held that the aforesaid principles as laid down by the General Clauses Act and the Limitation Act are not applicable to the time mentioned by the lower appellate Court in his order dated 2-3-1967. In para 6 of his judgment, the trial Court observed that the preliminary decree passed by the trial Court on 23rd March, 1964 is confirmed and, therefore, the trial Court allowed the application dated 4th July, 1965 made by the plaintiff for drawing the final decree. The trial Court, therefore, by his judgment and decree dated 19th Sept., 1968 passed the final decree and directed defendant No. 1 to hand over possession of the suit land to the plaintiff and also granted liberty to defendant No. 1 to withdraw the amount of Rs. 500/- deposited by the plaintiff in the trial Court after deducting the amount of costs of Rs.175.01 p.

6. The aforesaid judgment and final decree passed by the trial Court of Civil Judge, Junior Division, Junnar on 19th September 1968 was challenged by defendant No. 1 in Civil Appeal No. 961 of 1968. By the said Civil Appeal No. 961 of 1968, the lower appellate Court allowed the appeal preferred by defendant No. 1 and set aside the final decree dated 19th September, 1968 passed by the trial Court. The lower appellate Court by the said judgment directed restoration of the suit to the file of the trial Court and further directed that the said suit be proceeded with as if no preliminary decree or final decree was ever passed. While giving the aforesaid decision, the lower appellate Court held that the payment made by defendant No. 1 on 3-4-1967 was valid payment since 2-4-1967 was a holiday. Under these circumstances, the lower appellate Court remanded the matter to the trial Court.

7. After the remand, the trial Court by his judgment and decree dated 11th December, 1986 passed the final decree and ordered that the mortgage dated 18th January, 1930 was redeemed on payment of Rs. 500/- within one month. Further, defendant No. 1 was directed to restore the possession of the suit property to the plaintiff and defendant No. 1 was given liberty to withdraw the amount of Rs. 500/-deposited by the plaintiff after deducting an amount of Rs. 175.01 p. on account of costs. While passing the aforesaid decree, trial Court referred to certain objections raised by defendant No. 1. It was contended on behalf of defendant No. 1 that in fact the mortgage amount of Rs. 500/- was paid by the plaintiff long back and much earlier to filing of the suit and in fact the said mortgage was redeemed long back and there is an endorsement to that effect on the mortgage deed. Defendant No. 1 contended that after the said redemption, she continued to be in possession of the suit land and has thus become owner of the suit land by adverse possession. She also contended that after the redemption of the said mortgage, she continued as a tenant and, therefore, was protected under the Bombay Tenancy and Agricultural Lands Act. However, both these contentions were rejected by the trial Court. Trial Court observed that the plaintiff had deposited the amount of mortgage of Rs. 500/- in Misc. Application No. 14 of 1961 on 11th August, 1961 and, therefore, directed defendant No. 1 to restore possession of the suit land.

8. The aforesaid decision given by the Civil Judge, Junior Division, Junnar, dated

11th December, 1986 was challenged by defendant No. 1 in Civil Appeal No. 868 of 1987. In the said appeal, the lower appellate Court remanded the matter to the trial Court with the direction that the trial Court should decide as to who are legal heirs of the original plaintiff and defendant No. 1 and to bring proper parties on record. Trial Court was also directed to record fresh evidence in respect of drawing the decree and in doing so, an opportunity must be given to both the parties to lead oral and documentary evidence. Since the litigation was pending for a long time, trial Court was also directed to dispose of the suit within six months from the receipt of the record. The aforesaid matter was remanded because the lower appellate Court observed that Radhabai was seriously ill and, therefore, she had remained absent on 3rd of December 1986. According to the lower appellate Court, the trial Court ought not to have recorded the evidence on 3rd of December, 1986. This mistake, according to the lower appellate Court, had caused prejudice to defendant No. 1 appellant and, therefore, the lower appellate Court remanded the matter to the trial Court. While remanding the said matter, in the last para of his judgment before the order, the learned Judge made an observation to the effect that the matter was being remanded only for the purpose of drawing final decree. The lower appellate Court made it clear that this order of remand will not affect the order of preliminary decree which had already been passed. In view of this order, the matter went before the trial Court. Trial Court, after hearing both the sides, held that the plaintiff was entitled to get final decree of redemption and, therefore, passed the decree of redemption and held that the mortgage dated 18th January 1930 is redeemed on payment of Rs. 500/-. Trial Court also directed that defendant No. 1 should deliver possession of the suit property to the plaintiff and allowed defendant No. 1 to withdraw the amount of Rs. 500/- deposited in Court after deducting Rs. 175/- on account of costs.

9. The aforesaid decision dated 21st August, 1993 in Regular Civil Suit No. 24 of 1962 passed by the Civil Judge, Junior Division, Junnar, after remand was again challenged by defendant No. 1 in Civil Appeal No. 661 of 1993 before the VII Additional District Judge, Pune. The lower appellate Court held that the final decree passed by the trial Court dated 21st August 1993 is maintainable and, therefore, by his judgment and decree dated 9th August 1994 confirmed the judgment and decree passed by the trial Court dated 21st August 1993.

10. The aforesaid judgment and decree dated 9th August 1994 passed by the VII Additional District Judge, Pune, in Civil Appeal No. 661 of 1993 is the subject matter of challenge before me in this second appeal.

11. Mr. Apte, learned counsel appearing on behalf of defendant No. 1 contended before me that in this matter both the trial Courts have lost sight of the fact that preliminary decree; was not passed under Rule 7 of Order 34 of the Code of Civil Procedure and that both the lower Courts passed the final decree on the basis that preliminary decree had already been passed. In view of this, Mr. Apte, learned counsel appearing on behalf of the defendant No. 1, contended that the of decisions lower Courts are liable to be set aside. On the other hand, Mrs. Agarwal, learned counsel appearing on behalf of the plaintiff, contended that in fact a preliminary decree is deemed to have been passed and without prejudice to the aforesaid argument, assuming for a while that there is no preliminary decree passed, still, after taking into consideration all the facts and circumstances of this case, the final decree passed by the lower Courts will not become bad in law on the ground that no preliminary decree was passed. Therefore, in this appeal I have to decide as to whether, in fact, a preliminary decree was over passed before the final decree was passed. And, secondly, if I come to the conclusion that a preliminary decree was not passed, then whether the final decree passed by the lower Courts in the absence of a preliminary decree is valid or not.

12. This matter has moved to and frow from the trial Courts to the appellate Courts for more than three times. However, from the various judgments read over to me, it appears that in fact, preliminary decree was not passed

before passing the final decree. It is true that on 23rd March, 1964, trial Court Civil Judge, Junior Division, Junnar, passed the final decree. But the aforesaid decree was set aside by the Joint Judge, Pune in Misc. Appeal No.2 65 of 1966, Wherein the said Court passed a conditional order to the effect that the appeal was allowed subject to defendant No. 1 depositing amount of costs in Court on or before 2-4-1967. It was also observed by the said Court in the said judgment that if the said amount of costs was not paid on the said date, the appeal shall stand dismissed. It appears that in spite of this order, defendant No. 1 failed to make payment of the costs on or before 2-4-1967 but deposited the amount of costs on 3-4-1967 and, therefore, when the matter came up before the trial Court, the trial Court passed the final decree on 19th September 1968. The aforesaid decree was passed on the basis that already preliminary decree was passed on 23rd March 1964 and that was set aside by the appellate Court in Misc. Appeal No. 65 of 1966 by a conditional order and since defendant No. 1 failed to make the payment of costs on or before 2-4-1967, as directed by the lower appellate Court, the preliminary decree passed on 23-3-1964 by Civil Judge, Junior Division, Junnar, stood confirmed. It is on the basis of this reasoning, the trial Court passed the decree. Before the trial Court, it was argued by defendant No. 1 that in fact she was within her rights to pay the amount of costs on or before 2-4-1967 and 2-4-1967 being Sunday, in view of the principles laid down by the General Clauses Act and the Limitation Act, she was entitled to make payment on 3-4-1967, which she made. In view of this, she contended that she has made the payment as per the order of the Court and, therefore the preliminary decree passed on 23rd March 1964 was set aside. The aforesaid contention was rejected by the trial Court.

13. Against the aforesaid decision, defendant No. 1 preferred Civil Appeal No. 24 of 1962. The said appeal was allowed in favour of defendant No. 1 and the lower appellate Court by his judgment and decree set aside the trial Court's judgment and decree and held that the amount of costs paid on 3-4-1967 was a valid payment and, therefore, restored the suit to the file. In view of this, according to my opinion, the preliminary decree passed on 23rd March 1964 was set aside and the matter was sent back. The effect of the judgment and decree dated 29th September 1969 in Civil Appeal No. 961 is to the effect that the suit was to proceed afresh as if there was no preliminary decree.

14. But the matter does not end there. When the matter reached the trial Court, the application for final decree made by plaintiff which had been filed by the plaintiff earlier to the appeal filed by defendant No. 1, being Civil Appeal No. 961 of 1968, the trial Court passed the final decree dated 11th December 1986. While passing the aforesaid decree, the trial Court held that the fact that the suit land was mortgaged on 18th January 1930 for Rs. 500/- was an admitted position and the same was a usufractuary mortgage and plaintiff deposited the said amount of Rs. 500/-. Contention of defendant No. 1 to the effect that in fact long back this mortgage was redeemed and thereafter she was in adverse possession and became owner by adverse possession was rejected by the trial Court and also the defence of defendant No. 1 to the effect that she was the tenant of the suit land. After rejecting the aforesaid contentions, the Civil Judge, Junior Division, Junnar passed the decree of redemption by his judgment and decree dated 11th December, 1986. Against the said decision, Civil Appeal No. 858 of 1973 preferred before IV Additional District Judge, Pune, by defendant No. 1 was allowed and the matter was remanded and decree passed, by the trial Court was set aside. However, in para 6 of the said judgment, the lower appellate Court also gave directions to the effect that the matter was being remanded only for the purpose of drawing final decree and this order of remand would not affect the order of preliminary decree, which had been already passed. If the aforesaid judgment dated 31st March 1990 passed by IV Additional District Judge, Pune, in Civil Appeal No. 858 of 1987 is ready as a whole, it would appear that even the IV Additional District Judge, Pune, was under the impression that a preliminary decree was already passed by the

trial Court and the same was not to be disturbed by his said order of remand. The matter was remanded only for the purpose of passing a final decree. According to me all the subsequent Courts read this judgment also thinking that the matter had been remanded for the purpose of passing final decree. Some how or the Other the aforesaid direction in the said judgment was not challenged by defendant No. 1 in a higher Court and, therefore, remained as it is, which gave impression to the subsequent Judges, who decided this matter, that a preliminary decree was already passed in this matter and that after the remand only final decree was to be passed. That is how, all the subsequent Courts trial Courts as well as lower appellate Court, as pointed by me in the preliminary discussion in my judgment, proceeded on the footing that a preliminary decree was already passed and the matter was remanded only for the purpose of passing final decree.

15. I have already pointed out in the earlier portion of my judgment thai the preliminary decree passed on 23rd March 1964 by Civil Judge, Junior Division. Junnar was in fact set aside by judgment and decree dated 29th September 1969 passed in Civil Appeal No. 961 of 1968 and, therefore, I have to consider the other limb of the argument as to whether the final decree passed by the trial Court after the remand and confirmed by the lower appellate Court has become invalid due to not passing of a preliminary decree.

16. This appeal has a chequered history. As pointed out earlier, the mortgage is dated 18th January 1930, wherein mortgagee obtained possession of the land after paying Rs. 500/- to mortgagor. Plaintiff filed a suit in the year 1962 being Regular Civil Suit No. 84 of 1962. Today, in the year 1995, still we are in the realm of discussion whether any preliminary decree for redemption was passed or not. The matter was tossed between trial Courts and lower appellate Court on several times and ultimately has arrived before me. Therefore, while deciding this appeal if I arrive at a finding that the final decree passed by the lower Courts has not become invalid, then in that event, instead of sending this matter to the trial Court for deciding niceties of the matter, I would like to dispose of this second appeal finally. However, if not passing a preliminary decree before passing a final decree is going to vitiate the final decree or if it is going to cause prejudice to defendant No. 1, I will be constrained to remand the matter to the trial Court. Rule 7 of Order XXXIV of the Code of Civil Procedure, 1908 deals with preliminary decree in a redemption suit and it is as under:

"7. 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 of 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 up to 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 date as the Court may fix within six months from the date on which the Court confirm 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 adjusted 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 to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all encumbrances created by the

defendant or any person claiming under him where (he defendant claims by derived title, by these under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property and

(ii) that, 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 fails to pay within such lime as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree -

(a) in the 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 the mortgage property be, sold, or

(b) in the 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.

(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, expenses and interest."

17. The purpose for which the preliminary decree is passed is clearly stated in the aforesaid Rule 7 of Order XXXIV of the Code of Civil Procedure. In this matter, mortgage is dated 18-1-1930. Mortgagor received the amount of Rs. 500/- against the said mortgage. The said mortgage was a usufractuary mortgage, in the sense, under the mortgage deed the land was given in the possession of the mortgagee and, therefore, there was no question of calculation of any interest payable on the mortgage amount. Before filing the present suit for redemption, plaintiff on 11-8-1961 filed an application being Misc. Application No. 14 of 1961 under Section 83 of the Transfer of Property Act. In the aforesaid application, amount due under the mortgage was ascertained and plaintiff was directed to pay amount of Rs. 500/- in Court, which, in fact plaintiff deposited in Court as per the said order. Therefore, in this case there was no question of deciding the mortgage amount and interest payable on the mortgage amount for the purpose of preparing preliminary decree. Rules 7, 8 and 9 of Order XXXIV of the Code of Civil Procedure contemplate passing of a preliminary decree first and final decree at a later stage for the purpose of calculating the mortgage amount and interest thereon and also for the purpose of calculating the mortgage amount and interest thereon and also for the purpose of giving an opportunity to mortgagor to deposit the amount. In the present case, according to me, in the facts and circumstances of this case, there is no dispute as regards the amount due under the mortgage and mortgagor has already deposited the amount of Rs. 500/- in Misc. Application No. 14 of 1961 filed much earlier to the suit. In view of this, the Court was not without jurisdiction to pass straightway the final decree for redemption. This being the position, in this case, even if the lower Court have passed the final decree of redemption assuming that a preliminary decree was already passed when, in fact, it was not passed, still in view of facts and circumstances of this case as pointed out earlier, the said decree had not become invalid.

18. Mr. Agarwal, learned counsel appearing on behalf of respondent (original plaintiff) has relied on the judgments delivered by the Kerala and Madras High Courts in the following cases : (1) AIR 1981 Kerala 135 (Mosa Rajayyan v. Jacob Haris), (2) AIR 1978 Madras 246 (Marimuthu Muthiriar v. Ayyathurai) and (3) (1988) 1 Madras Law Journal 407 (Nainar Mohammad Rowther v. Miner Vijayasankar). Ratio of the aforesaid decisions clearly supports the proposition as laid down in the succeeding paragraph of this judgment.

19. Mr. Apte, learned counsel appearing on behalf of defendant No. 1 contemplated by referring to written statement of defendant No. 1, therein, according to him, defendant

No. 1 has taken a specific stand that she became owner of the suit land by adverse possession. Alternatively, she claimed that she is the tenant of the land. In para two of her written statement, defendant No. 1 has contended that 14 to 15 years prior to 16-8-1962 when the aforesaid written-statement was filed, original mortgagor returned the mortgage amount of Rs. 500/- to her mother-in-law, who gave an endorsement on the deed of mortgage to the effect that the mortgagor had been redeemed. Thereafter she continued in possession for about one to two years as a tenant of the land and thereafter as owner of land and, therefore, she became owner of the suit land by adverse possession even before the date on which plaintiff filed the suit. According to me, there is no substance in the aforesaid argument. It is difficult to believe that 14 to 15 years prior to 16-8-1962 original mortgagor had paid the money under the mortgage and got the land redeemed from mother-in-law of defendant No. 1 and had not obtained the possession of the land. If this story is not believed, then on the principle once a mortgagee always a mortgage and mortgage in possession continues in possession under mortgage and cannot claim the land by adverse possession or as a tenant, because mortgagee continues in possession under the mortgage and he is estopped from taking any other stand inconsistent with the mortgagee in possession. In view of this sham defence, according to me there is no need to send this matter back for trial. As pointed out earlier, this mortgage is dated 18th January 1930 wherein original mortgagor gave possession of the land against Rs. 500/-. Mortgagor i.e. the present plaintiff paid the amount of Rs. 500/- on 11-8-1961 as per the directions of the Court under Misc. Application No. 14 of 1961 filed by him under the Transfer of Property Act. The matter was tossed between the trial Courts to lower appellate Courts several times and ultimately has reached the corridors of this High Court after 33 years. In order to avoid multiplicity of proceedings and in view of the reasons given by me earlier, I do no think that this is a fit case to remand the matter, as contended on behalf of Defendant No. 1.

20. In view of this appeal is dismissed with no order as to costs. Interim order passed during the pendency of this appeal stands vacated. Certified copy be issued expeditiously.

21. Mr. Apte, learned counsel appearing on behalf of the appellant (defendant No. 1) prays for time to approach the Supreme Court. Mrs. Agarwal, learned counsel appearing on behalf of the plaintiff opposes the said application. According to her, plaintiff has been fighting this litigation for more than 30 years and no further time should be granted in this case.

22. Heard both sides at length. Decree passed by this Court not to be executed till 16-8-1995.

Appeal Dismissed