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Seth Roshan Lal Vs. Bhuri Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1922All479; 70Ind.Cas.899
AppellantSeth Roshan Lal
RespondentBhuri Singh and ors.
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 8 - mortgage--redemption, suit for--mortgage-money deposited in court--final decree--preliminary decree, whether necessary. - - even if a preliminary decree were passed and followed by a final decree the result would be only a prolongation of the proceedings without any good being done to either party, except that by this delay what the mortgagee really wants is a longer period;.....the proceedings by passing first a preliminary decree for redemption, to be followed later on by a final decree for redemption, but the decree it passed was a final decree, the defendant no. 1 being directed to realise the money already deposited in court by the plaintiff for payment to the mortgagee. this decree was affirmed, cm appeal.2. the defendant no. 1, the contesting mortgagee, comes here in second appeal. when the appeal came up for admission before my learned brother tudball, j., it was represented to him that the passing of a final decree as contemplated by order xxxiv, rule 8 was a necessity and it was stated to him that some twenty years ago there was a decision by this court in favour of this view. i have asked the learned vakil for the appellant to give me the reference to.....
Judgment:

Gokul Prasad, J.

1. The only point raised in this appeal is a purely technical one. The plaintiff-respondent brought a suit for redemption of a mortgage and, under the provisions of Section 83 of the Transfer of Property Act, he actually deposited in Court the amount due on the mortgage. The mortgagees refused to accept the amount so deposited in satisfaction of their claim. The plaintiff who has succeeded to the rights of the mortgagor then brought the present suit for redemption. The defendants are the successors-in-interest of the original mortgagee, and the defendant No. 1 contested the claim by denying, the existence of the mortgage set up by the plaintiff. The Court of first instance came to the conclusion that the mortgage set up by the plaintiff had been proved, and that the deposit made by the plaintiff in the proceedings under Section 83 of the Transfer of Property Act was sufficient. Under the circumstances, it did not consider it necessary to prolong the proceedings by passing first a preliminary decree for redemption, to be followed later on by a final decree for redemption, but the decree it passed was a final decree, the defendant No. 1 being directed to realise the money already deposited in Court by the plaintiff for payment to the mortgagee. This decree was affirmed, cm appeal.

2. The defendant No. 1, the contesting mortgagee, comes here in second appeal. When the appeal came up for admission before my learned brother Tudball, J., it was represented to him that the passing of a final decree as contemplated by Order XXXIV, Rule 8 was a necessity and it was stated to him that some twenty years ago there was a decision by this Court in favour of this view. I have asked the learned Vakil for the appellant to give me the reference to that case but he has not been able to supply the necessary reference. So far as the merits of the case go, there are none. The concurrent findings of fact necessitated a decree for redemption in favour of the plaintiff. After considering the provisions of Rules 7, 8 and 9, I infer that there might be cases in which, when the Court finds that the mortgagee has been paid, a decree for redemption can be passed at once. No injustice has been done to the defendant, who could have succeeded only on the ground which he took, namely, that there was no such mortgage as was put forward by the plaintiff. This appeal which has been preferred is purely a matter of form. Even if a preliminary decree were passed and followed by a final decree the result would be only a prolongation of the proceedings without any good being done to either party, except that by this delay what the mortgagee really wants is a longer period; of possession over the property, forgetting that the mortgagor having already deposited the money in Court he may have a claim for mesne profits for being kept out of possession wrongfully by the mortgagee. In my opinion, the prolongation of this proceeding is neither in the interest of the plaintiff-mortgagor nor the defendant-mortgagee. I, therefore, dismiss this appeal with costs.


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