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Abdul Karim Vs. Durga Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All305
AppellantAbdul Karim
RespondentDurga Prasad and ors.
Cases ReferredNakta Ram v. Chiranji Lal
Excerpt:
.....or before the final decree i n that suit has become incapable of execution, to maintain a second suit for redemption of the same mortgage. 2. by the preliminary decree in a redemption suit, the mortgagor is allowed a period of six months within which he is required to pay the amount declared due, at the date of such decree, to the mortgagee, as a condition precedent to the redemption of the mortgage, and on his failure to do so that decree directs the sale of the mortgaged property. the provisions of order 34, rule 8(4), are imperative, and if the payment required to be made by the mortgagor is not made by him within the time allowed by the preliminary decree, the court is, unless it extends the time for payment, bound under the provisions of order 34, rule 8(4), on application by the..........or before the final decree i n that suit has become incapable of execution, to maintain a second suit for redemption of the same mortgage. the trial court answered the question in the negative and dismissed the suit. the decree of the trial court dismissing the plaintiff's suit has been affirmed by the lower appellate court, though not for the reasons assigned by the trial court. in my judgment a second suit for redemption is not maintainable during the continuance of a previous suit for redemption of the same mortgage or until the decree in the former suit is in capable of execution.2. by the preliminary decree in a redemption suit, the mortgagor is allowed a period of six months within which he is required to pay the amount declared due, at the date of such decree, to the mortgagee,.....
Judgment:

Iqbal Ahmad, J.

1. The question of law involved in this appeal is, as to whether a mortgagor, who has failed to comply with the terms of a decree in a redemption suit filed by him, is entitled during the continuance of that suit, or before the final decree i n that suit has become incapable of execution, to maintain a second suit for redemption of the same mortgage. The trial Court answered the question in the negative and dismissed the suit. The decree of the trial Court dismissing the plaintiff's suit has been affirmed by the lower appellate Court, though not for the reasons assigned by the trial Court. In my judgment a second suit for redemption is not maintainable during the continuance of a previous suit for redemption of the same mortgage or until the decree in the former suit is in capable of execution.

2. By the preliminary decree in a redemption suit, the mortgagor is allowed a period of six months within which he is required to pay the amount declared due, at the date of such decree, to the mortgagee, as a condition precedent to the redemption of the mortgage, and on his failure to do so that decree directs the sale of the mortgaged property. The provisions of Order 34, Rule 8(4), are imperative, and if the payment required to be made by the mortgagor is not made by him within the time allowed by the preliminary decree, the Court is, unless it extends the time for payment, bound under the provisions of Order 34, Rule 8(4), on application by the mortgagee, to pass a decree, that the mortgaged property or a sufficient part thereof be sold and the proceeds of the same be applied in the manner provided for in Sub-clause (4). It follows, therefore, that the failure of the plaintiff in a redemption suit to pay the amount fixed by the preliminary decree within the time allowed by that decree entitles the mortgagee to have a decree in terms of Sub-clause (4) of Rule 8 of Order 34 and this right is vested in the mortgagee by the very terms of the preliminary decree which is binding both on the mortgagor and the mortgagee.

3. The mortgagee has, by Article 181 of the First Schedule to the Limitation Act, a period of three years from the last date fixed by the preliminary decree for the payment of the amount due on the mortgage, to apply for a final decree. If he fails to make such an application within three years, his right to apply for a final decree becomes time-barred, and the redemption suit comes to an end. But during the three years, from the date fixed for payment by the preliminary decree, the suit for redemption continues, and during that period the rights of the mortgagor and the mortgagee are governed by the preliminary decree.

4. The necessary consequence of holding, that during the continuance of the first redemption suit the mortgagor is entitled, notwithstanding his failure to pay the amount fixed by the preliminary decree within the time allowed by that decree, to institute fresh suit for redemption, will be to hold that the mortgagor is entitled to ignore the previous decree. This obviously he cannot be allowed to do inasmuch as the decree in the former suit is binding on him. Again, if a second suit for redemption were under the circumstances noted above to be allowed to continue, there will be the anomaly of two suits for redemption of the same mortgage, between the same parties, going on side by side and ending in two inconsistent decrees for redemption. The decrees in the two suits must necessarily be inconsistent, inasmuch as the time fixed for payment of the mortgage money by the decrees in the two suits must necessarily be different. If the preliminary decrees in the two suits will be inconsistent, it follows that final decrees prepared on the basis of those preliminary decrees must necessarily be inconsistent, with the result that there will be two contradictory decrees capable of execution between the same parties. Therefore, to answer the question of law noted in the beginning of this judgment in the affirmative would be to reduce the law to an absurdity, and I am not prepared to so answer the question unless I am compelled by authorities to do so.

5. But it was urged by the learned Counsel for the appellant, with all the earnestness at his command, that the authorities do countenance the maintainability of a second suit for redemption, under the circumstances noted above. As, in my judgment, the assertion and the argument of the learned Counsel for the appellant are not well founded, I must proceed to notice the authorities cited by him, and to give my reasons for holding that a second suit for redemption is not, under the circumstances of the present case, maintainable. The first case on which reliance has been placed by the learned Counsel for the appellant is the Full Bench decision of this Court reported as Sita Ram v. Madho Lal [1901] 24 All. 44. No doubt, in that case it was held that notwithstanding the fact that the mortgagors had failed to make the payment within the time allowed by the decree in a former redemption suit brought by them, they were entitled to maintain a second suit for redemption. But the facts of that case were essentially different. In that case the former suit for redemption was brought in the year 1869 and presumably the decree for redemption was passed in the same year, and the second suit was not brought till about 27 years after the institution of the first suit. The decree in the former redemption suit provided that on failure of the plaintiffs to make the payment within the time allowed by that decree

this judgment shall after the expiry of the above-mentioned period be considered as nonexistent.

6. That decree was so to say entirely one-sided. In other words, though it entitled the mortgagors to redeem the mortgage within a certain period, it did not invest the mortgagee with a right to have an order for sale of the mortgaged property, on the failure of the mortgagors to make the payment within the time fixed by that decree. This being the form of the decree in the first redemption suit, this Court, having regard to the fact, that the only limitation put upon the right given to the mortgagors to redeem the mortgage by Section 60 of the Transfer of Property Act, was that right could be extinguished by acts of the party or by an order of the Court, held that the order of the Court embodied in the decree in the first redemption suit not having taken away that right, the second suit for redemption was maintainable. Moreover, in that case the first decree in the redemption suit had, long before the institution of the second suit for redemption, become incapable of execution by lapse of time, with the result that by allowing the second suit for redemption there could not come into existence two decrees, contradictory to each other and capable of execution. The question that the Full Bench had to decide in Sita Ram v. Madho Lal [1901] 24 All. 44 was in the words of the acting Chief Justice:

Where a mortgagor who has obtained a decree for redemption, which does not contain a provision that if payment is not made on the date fixed by the Court, the mortgagor shall be absolutely debarred of all right to redeem the property, and who has not enforced that decree and has not paid in the decretal amount within the time, can subsequently bring a second suit for redemption of the mortgage in respect of which such first decree was obtained.

7. In the present case I have not to consider that question, inasmuch as it is common ground that the plaintiff in the first suit for redemption filed by him obtained a preliminary decree on the 21st of February 1922, which provided that in the event of the payment of the mortgage-money not being made by the plaintiff, within the time fixed by that decree 'the right of redemption will be lost.' After the period so fixed by the Court expired without any payment having been made, the second suit for redemption giving rise to the present appeal was filed by the plaintiff on the 4th of July 1923. During the pendency of this second suit for redemption, the preliminary decree in the first suit for redemption was, at the instance of the present plaintiff, amended and brought into conformity with the provisions of Order 34, Rule 8(4). After the amendment of the decree the defendant-mortgagee applied for a final decree, but the disposal of that application was stayed pending the decision of the second suit for redemption filed by the plaintiff out of which the present appeal arises.

8. It will be noticed, from the statement of the facts contained above, that in the present case there was never a decree of the nature that formed the subject-matter of consideration in the case of Sita Ram v. Madho Lal [1901] 24 All. 44. The first suit for redemption filed by the plaintiff still continues and will continue till the Court draws up a final decree in the case. It were to be held that the suit giving rise to the present appeal is also maintainable, the necessary consequence will be, as pointed out above, to bring two inconsistent preliminary and final decrees into existence. This question was not for consideration before the Full Bench in the case of Sita Ram v. Madho Lal [1901] 24 All. 44 nor was it considered.

9. It is pressed upon me, by the learned Counsel for the appellant, that there are certain observations in the, judgment of Banerji, J., which point to the conclusion, that learned Judge intended to hold, and did hold, that unless the Court in pursuance of the decree in the first redemption suit passes an order that the mortgaged property or a sufficient part thereof be sold as provided by Section 93 of the Transfer of Property Act, the right of the mortgagor to redeem the mortgage is not extinguished and this right he can exercise by a second suit for redemption. My attention has been invited to a passage at page 53 of 24 Allahabad which runs thus:

The rulings of the Madras High Court, which he (Aikman, J.) has considered in detail, are consistently to the effect that in the case of a usufructuary mortgage, the right to redeem is not extinguished, unless, upon default in payment on or before the day fixed, the Court passes an order that the mortgaged property or a sufficient part thereof be sold as provided in Section 93.

10. I have consulted all the rulings of the Madras High Court noticed in the judgment of Aikman, J., in the case of Sita Ram v. Madho Lal [1901] 24 All. 44 and I find that in none of those cases in which a second suit for redemption was held maintainable, was the decree in the former suit for redemption of the mortgage capable of execution. This being so, the observations of that eminent Judge quoted above cannot be held to apply to the circumstances of the present case.

11. The next case relied on by the learned Counsel for the appellant is the case of Hari Ram v. Indraj A.I.R. 1922 All. 377. In that case also the decree for redemption obtained in the former suit had become, long before the institution of the second suit for redemption, incapable of execution, because of lapse of time, and as such that case also is distinguishable from the present case. It may be pointed out that before the passing of the present Code of Civil Procedure, the proceedings for the preparation of a decree absolute were execution proceedings, and the suit for redemption did not continue as is the case now after the passing of the new Civil Procedure Code, up to the date of the passing of the final decree.

12. The case of Nakta Ram v. Chiranji Lal [1910] 32 All. 215 is an authority for the proposition that

where a mortgagor brings a suit for redemption and obtains a conditional decree but omits to fulfil the condition imposed upon him, he is not debarred from bringing a second suit for redemption unless the decree lays down that if he fails to fulfil these conditions, the property will be sold or he will be debarred of all his rights to redeem.

13. If the decree in the first redemption suit provides that the mortgaged property, on the failure of the plaintiff to make the payment required by the preliminary decree, will be sold, then so long as the time to apply for a final decree does not expire a second suit for redemption is not maintainable inasmuch as the first suit for redemption continues till then.

14. For the reasons given above in my judgment, the decree of the Courts below are right and must be affirmed. Accordingly, I dismiss the appeal with costs.


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