Skip to content


Raghu Nath Vs. Harbans Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 229D of 1966
Judge
Reported in4(1968)DLT121
ActsCode of Civil Procedure (CPC), 1908 - Order 34, Rule 10
AppellantRaghu Nath
RespondentHarbans Singh and ors.
Advocates: Madan Bhatia and; R.L. Aggarwal, Advs
Excerpt:
.....in a suit for redemption of mortgage final - in the instant case the petitioner deposited the mortgage money in the court - the respondent carried out extensive additions and improvements to properties and was entitled to amount spend - it was held that only those expenses could be added to mortgage money which were incurred up to the date of actual payment of mortgage money and the expenses incurred after the date of actual payment was nto to be added - thereforee, the revision petition was allowed and the order of the subordinate judge was set aside. - - mahajan :the facts disclose clearly that amolak ram and tyagi (respondent no 1) colluded together to defeat the preliminary decree. it is clearly that only those expenses can be added to the mort- gage-money, under the above..........under the above rule, which were incurred up to the date of actual payment of the mortgage-money. expenses incurred, after the date of actual payment, cannto be added under that rule the express- ion 'actual payment' used in the rule will include deposit made in court. in the instant case, the preliminary decree directed that the mortgage-money be deposited in court. the petitioner had deposited the morigage-money of rs 5,000.00 on the 22nd july, 1959, in court in pursuance of the terms of the preliminary decree. the deposit amounted to actual payment of the mortgage-money the alleged additions and improvements were admittedly made in 1962, almost three years after the deposit. the question of the expenses of the alleged additions and improvements, made along after the deposit,.....
Judgment:

Om Parkash, J.

(1) This revision-petition, against an order of the learned Subordinate Judge, Delhi has arisen out of an application filed by the petitioner, for making a preliminary decree, passed in a suit for redemption of mortgage, final. The facts of the case are given in the order dated the 11th September 1963 of Mr. Justice D. K. Mahajan, passed in Civil Revision No. 633-D of 1962. The facts are that, on the 31st March, 1953, the petitioner had mortgaged, on the basis of a registered mortgage deed, three properties Nos. 9-D, 9-E and 9-F situated on Rajpur Road, Delhi, in favor of respondent No. 1, for Rs. 5,000.00. It was provided, in the mortgage deed, that redemption of the mortgage had to be obtained within four years and that toherwise the mortgage properties would be treated as having been sold. Within the period of four years, the petitioner had sent a letter to respondent No. 1 offering to pay Rs. 5000.00 and asking him to fix the time for taking the money and for delivery of the properties. Respondent No. 1 had replied that this could be done at any time. On the 30th March, 1957, the petitioner had taken a sum of Rs. 5,000.00 and had offered it to respondent No. 1 in the presence of the Ntoary Public. Respondent No. 1 had refused to accept the amount. The petitioner had, then, institued a suit on the 10th August, 1957 for redemption of the mortgage. In that suit Amolak Rai, respondent No. 2, who was a tenant of one of the properties and Bhola respondent No. 3 who was a licensee of antoher property, were imp leaded as parties. Bhola did nto appear despite service. He was proceeded against ex-parte. The suit was con- tested by respondent No. 1 and Amolak Rai respondent No. 2. The plea of respondent No I was that the mortgage money was nto tendered to him and that he was prepared to redeem the property on payment of the mortgage money. The stand of Amolak Rai, respondent No. 2, was that he was a tenant prior to the mortgage and was nto a tenant of the mort- gagee. The trial court passed a preliminary decree on the 27th May, 1959. It held that Amolak Rai, respondent No. 2, had been inducted as a tenant by the mortgagee and was nto a tenant prior to the mortgage. The preliminary decree directed that the mortgage money of Rs. 5000.00 be deposited by the 22nd July 1959 and that respondent No. 1 was, on deposit of the mortgage money to give vacant possession of properties 9-D, 9-E and symbolic possession of property 9-F to the petitioner. The petitioner deposited the mortgage money of Rs. 5,000.00 on the 22nd July 1959. Amolak Rai respondent No. 2 had appealed against the preliminary decree so far as it affected him His appeal was allowed on the 7th November, 1960 and it was held that the petitioner could get only symbolic possession of the property in possession of Amolak Rai. The petitioner was directed to pay to Amolak Rai the amount of Rs. 266.02 nP. as costs of the suit and the appeal. Against the decision, allowing the appeal of Amolak Rai, the petitioner filed a second appeal in the High Court. That appeal, it is understood, is still pending.

(2) The petitioner was nto delivered possession of the mortgage properties after the deposit of the mortgage-money on the 22nd July 1959. The petitioner, thereforee, made an application on the 24th January 1961 for making the preliminary decree final. Ntoice of the application was issued to the respondents. On the 18th February 1961, Amolak Rai, respondent No. 2, applied for attachment of Rs. 265.02 nP., the costs awarded to him, out of the mortgage money of Rs. 5000.00, deposited by the petitioner under the preliminary decree. On the 23rd February 1961, Amolak Rai, respondent No. 2, filed his reply to the application for the passing of the final decree and in that reply he indicated that he had attached a sum of Rs. 265.02 nP. out of the sum of Rs. 5000.00. Respon- dent No. 1 filed his reply on the 21st March 1961. Respondent No. 1 contended that the preliminary decree had nto been complied with as the amount deposited fell short of Rs. 265.02 nP. the amount attached by Amolak Rai, respondent No. 2. Respondent No. 1 requested that as the terms of the preliminary decree had nto been complied with, a decree for foreclosure may be passed in his fovour. On the 1st April, 1961, the petitioner raised objections against the attachment of the amount of 123 Rs. 265.02 nP out of the amount of Rs. 5000.00. The contention of the petitioner was that sum of Rs. 5000.00 had been paid towards the satisfac- corporation of the preliminary decree and that that sum was no longer his property and could nto be attached. Without deciding the objections of the petitioner, the Court dircted that the sum of Rs. 265.02 nP be paid to Amolak Rai, respondent No. 2. The amount was paid on the 25th April 1961. On the 24th May 1961, an exparte order was passed whereby the petitioner's application for the passing of the final decree for redemption was dismissed and a decree for foreclosure was passed in favor of respondent No. 1. Against this decree, appeal was preferred to the District Judge, which was dispos- ed of by the Additional District Judge. The Additional District Judge found ail the material issues in favor of the petitioner but dismissed the appeal on the ground that no appeal was competent because the appeal had nto been filed against the foreclosure decree. The petitioner prefer- red a revision petition, against the order of Additional District Judge in the High Court That revision petition was registeaed as Civil Revision No. 633-D of 1962. The revision petition was accepted by Mr. Justice D. K.. Mahajan on the 11th September 1963. Mr. Justice D.K. Mahajan set aside the order of the Additional District Judge holding that appeal was competent. He remanded the appeal to the Additional District Judge for disposal. 3 On remand the learned Additional District Judge, by his order dated the 12th April 1965 allowed the appeal. He held that the petitioner had complied with the terms of the decree and had deposited Rs 5000.00 and that after the deposit the money belonged to respondent No. 1 and nto to the petitioner and could nto be attached. The learned Additional District Judge further held that payment of Rs. 265.02 nP to Amolak Rai, respondent No. 2, with the consent of respondent No. 1, did nto affect the deposit of Rs. 5000.00 under the preliminary decree and that the peti- tioner had complied with the terms of the preliminary decree. The order of the Subordinate Judge dismissing the application of the petitioner and passing a decree for foreclosure in favor of respondent No. 1 was set aside. The case was remanded to the Subordinate Judge for disposal in accordance with law. 4. The record was received in the court of the Subordinate Judge on the 1st October 1965. Ntoices were issued to the parties. Respon- dent No. 1 filed fresh objections on the 27th October, 1965, against the application for passing the final decree. His objection was that the High Court had no jurisdiction to entertain Civil Revision No. 633-D of 1962 decided on the 11th September 1963 in as much as the revision was nto competent and the order of remand of the High Court and the subse- quent order of the Additional District Judge were null and void, and that the decree of foreclosure passed by the trial court in favor of respondent No. I remained intact. Antoher objection of respondent No. 1 was that after the fore-closure decree, he had become full owner and had carried out, in September 1962, extensive additions and improvements to the properties in suit and that in case the petitioner was held entitled to a final decree for redemption, respondent No 1 was entitled to the amount spent on additions and improvements. The objections were opposed on behalf of the petitioner. He denied that the orders of the High Court and the Additional District Judge were void. The petitioner, fur- ther denied that respondent No. 1 had carried out any additions or improvements or that he was entitled to get any compensation. The petitioner contended that the question whether respondent No. 1 had affected any additions and improvements in the .properties in suit could nto be gone into in the application for passing the final decree and 124 respondent No. 1 could nto be allowed the expenses if any incurred on such additions and improvements inasmuch as the additions and improve- ments were admittedly made in 1962 long after the petitioner had deposited the mortgage-money in 1959, in pursuance of the preliminary decree. The learned Subordinate Judge rejected the contention of respondent No. 1 that the order of the High Court and of the Addition- al District Judge were null and void but held that the question whether respondent No. 1 had incurred expenses on improvements and additions in the properties in suit could be gone into and the expenses incurred could be added to the mortgage money under Order 34, Rule 10, Civil Procedure Code The learned Subordinate Judge consequently framed the following issue:- 5. Whether defendant No. 1 incurred any expenses on the pro- perty in question If so how much and whether those expenses were properly incurred The petitioner has filed the present revision petition against the order of the learned Subordinate Judge rejecting his contention that as the expenses on additions and improvements were admittedly incurred three years after the petitioner had deposited the mortgage money in court, the expenses even if it be proved that they bed been incurred, could nto be added to the mortgage money at the time of passing of the final decree. 6. The revision petition has been contested on behalf of respon- dent No. 1. The name of A molak Rai, respondent No 2, who had died long before the filing of the revision petition, was dropped vide order of Mr. Justice S. K. Kapur dated the 29th November, 1966. Bhola, res- pondent No. 3, did nto appear despite service. He was proceeded against ex-parte. 7. During the course of hearing of arguments in the revision petition, the learned counsel for respondent No. 1 pointed out that respondent No. 1 had filed an appeal against the order of the Additional District Judge dated the 12th April, 1965 whereby the order of the Sub- ordinate Judge dismissing the application of the petitioner for passing the final decree was set aside. The learned counsel requested that that appeal may be heard along with the revision petition of the petitioner. The hearing of the revision petition was consequently adjourned and the record of the appeal was sent for. The record was nto available. The learned counsel for the petitioner was pressing for the disposal of the revision petition. The learned counsel for the petitioner had contended that respondent No. 1 was deliberately delaying the disposal of the case so that the petitioner may nto get possession of the properties mortga- ged in spite of the fact that he had deposited the mortgage-money under the terms of the preliminary decree eight years ago. The learned counsel referred to the following observations of Mr. Justice D. K. Mahajan :- 'The facts disclose clearly that Amolak Ram and Tyagi (Respondent No 1) colluded together to defeat the preliminary decree. This conclusion is irresistible from the undisputed 'facts proved on the record and it is a pity that their collusion had been responsible in defeating the ends of Justice. * *'. 8. The learned counsel also pointed out that issues about impro- vements were struck in the suit for redemption but were nto pressed by respondent No. 1 and that respondent No I had nto taken up any plea about improvements in his reply filed on the 21st March, 1961 to the application of the petitioner for making the preliminary decree final. 9. At the pressing request of the learned counsel for the petitioner, the revision petition has been heard without the appeal. 125 10. The only point convassed in the revision petition was whether under order 34, rule 10, C. P. C. the Subordinate Judge had jurisdiction to go into the question oF expenses alleged to have been incurred on additions and improvements effected in 1962, almost three years after the mortgage-money had been deposited by the petitioner and to add those expenses to the mortgage-money. Rule 10 aforesaid reads ;- 'In finally adjusting the amount to be paid to a mortgages in case of a foreclosure, sale or redemption, the court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortage-money such costs of the suit and toher costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment.' II. It is clearly that only those expenses can be added to the mort- gage-money, under the above Rule, which were incurred up to the date of actual payment of the mortgage-money. Expenses incurred, after the date of actual payment, cannto be added under that Rule The express- ion 'Actual payment' used in the Rule will include deposit made in court. In the instant case, the preliminary decree directed that the mortgage-money be deposited in court. The petitioner had deposited the morigage-money of Rs 5,000.00 on the 22nd July, 1959, in court in pursuance of the terms of the preliminary decree. The deposit amounted to actual payment of the mortgage-money The alleged additions and improvements were admittedly made in 1962, almost three years after the deposit. The question of the expenses of the alleged additions and improvements, made along after the deposit, could nto be gone into, and the expenses could nto be added to the mortgage-money, under Rule 10 aforesaid. The learned Subordinate Judge has no jurisdiction to go into the question of expenses alleged to have been incurred byrespondent No. I on additions and improvements alleged to have been affected in 1962. The order of the learned Subordinate Judge is without jurisdiction and liable to be quashed. 12. The revision petition is allowed. The order of the Subordinate Judge holding that he had jurisdiction to enquire into the question of expenses allegedly incurred by respondent No. 1 on the properties mortgaged and the issue struck by him are set aside. The case is remanded to the learned Subordinate Judge for passing a final decree in accordance with law. Respondent No. 1 will pay the costs of the revision petition to the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //