C.M. Lodha, J.
1. This is a plaintiff's second appeal in a suit for redemption of mortgage of a house situated in Nallah Bazar, Ajmer.
2. One Smt. Kesar Bai mortgaged the house in question to Ghisulal, father of defendant-respondents Nos. 1 to 4 for Rs. 1,300/-by a registered mortgage died sometime in 1933 A.D. Kesar Bai died on 19-9-1945. It is alleged by the plaintiffs that she had executed a will in favour of her brother's son Parkash Chandra on 12-0-1943 Prakash Chandra obtained letters of administration on the basis of the will on 17-9-1957 and served a notice dated 24-5-1961 on Ghisoolal requiring the latter to give him possession of the mortgaged property, on payment of the mortgage money. However, Ghisoolal did not comply with the notice and died sometime thereafter. Consequently, Parkash Chander as well as his father Mathura Das filed the present suit on 25 5-64 in the court of the Munsiff City (West), Ajmer against the present respondents Gumanmal and others who are the sons of Ghisoolal for possession of the mortgaged property by redemption on payment of Rs. 1,300/-as mortgage money. It may be stated here that the plaintiff had also alleged in the plaint that Ghisoolal had transferred all his, rights, title and interest in the mortgaged property in favour of one of his sons Tarachand Defendant No. 4 sometime in the year 1961 by a registered document This fact was admitted by the defendants in their joint written statement and is, no mote in controversy. Even then, no objection has been raised on behalf of the defendants other than Tara Chand against their being impleaded as defendants in the case. A decree for redemption has also been passed against, all the defendants' but no objection has been taken on their behalf either in the first appeal court or in this Court.
3. All the defendants filed a joint written statement in which they denied the plaintiffs right to file a suit for redemption. They also pleaded that if a decree for redemption is passed, besides the mortgage money i.e. Rs. 1, 300/-, they should be awarded the following items:
(1) Rs. 105/10/- on account of house tax
(2) Rs. 3,274/8/- on account of costs of additions and alteratians carried out by them:
(3) Rs. 976/13/ on account of repairs.
(4) Rs. 2,224/6/- on account of interest on the amount of repairs and additions.
4. After recording the evidence of the parties, the learned Munsiff Ajmer, came to the conclusion that the original Mortgagor Kesar Bai died issueless on 19-9-45 and that the plaintiff was entitled to file the suit for redemption On the question of the amount to be paid on redemption, its finding was that the defendants had succeeded in proving that an amount of Rs. 976/13/- had been spent by the defendants on repairs and that the defendants were also entitled to get Rs. 3,274/8/- on account of additions and alterations carried out by them in the mortgaged house after notice to the mortgagor. It also found that the defendants were entitled to be re-imbursed for Rs. 105-10-0 paid as house tax. As regards the amount of interest, the trial Court found that the plaintiff was liable to pay Rs. 2,030/-/- as interest In the result, the trial court passed a preliminary decree in favoar of the plaintiff NO. 1 Prakash Chandra against a the defendants for redemption & directed that on payment of a sum of Rs. 7686.94 paisa by the plaintiff along with costs of the suit to the defendants, the defendants would surrender the possession of the property to the plaintiff No. 1 Four months' time was allowed to the plaintiff to pay the amount and it was further observed that if the amount is not paid within this period or within the period extended by the court, the plaintiffs' suit would stand dismissed.
5. Aggrieved by the judgment and decree of the trial court fixing the amount as Rs. 7,686.94 P. the plaintiff filed an appeal in the court of the District Judge, Ajmer, which was transferred to the court of the Additional Civil Judge, Ajmer. The defendant also filed a cross-objection claiming interest pendente lite and future interest on the mortgage amount of Rs. 1,300/- at 12% per annum. The learned Additional Civil Judge, Ajmer, by his judgment dated 4-7-68 dismissed the plaintiffs' appeal, but allowed the defendants cross-objection and held that the defendants are entitled to interest on Rs. 1300/- at: 12% per annum, from the date of the suit till realisation. The rest of the trial court's decree was maintained. Dissatisfied with judgment of the Additional Civil Judge, Ajmer, the plaintiff's have filed this second appeal.
6. A preliminary objection has been raised on behalf of the defendant-respondents that the appeal is not maintainable and the plaintiffs' suit for redemption should be deemed to have been dismissed as the plaintiff failed to carry out the direction of the court or depositing the amount within the period granted to him It is urged that there was no subsisting decree on the date of hearing and therefore the appeal must be dismissed on that ground alone.
7. For a correct appreciation of the preliminary objection, it would be necessary to refer to the facts relevant for the purpose in some detail. At the time of passing the preliminary decree, the trial court observed, as follows : 'The plaintiff is allowed 4 months' time to pay this amount. If the amount is not paid within this period or in the period extended by the court the plaintiff's suit shall stand dismissed.' After filing an appeal in the lower appellate court the plaintiff made an application under Order 41, Rules 5 & 8 C.P.C. praying that the operation of the trial court may be stayed and the learned Additional Civil Judge by his order dated 22-6-67 stayed the operation of the judgment of the trial court regarding deposit of the amount within a period of 4 months till the disposal of the appeal. The appeal was dismissed by the learned Additional Civil Judge on 4-7-1968. The decree of the trial court was however varied to the extent that the plaintiff was also directed to pay interest on Rs. 1,300/-/- per annum from the date of suit till realisation & it was further observed that the rest of the decree of the trial court be maintained. The plaintiff filed a stay application in this Court also, praying that further proceedings in the court below and the directions contained in the preliminary decree may be stayed till the disposal of the appeal. On this application an ex-parte order was passed on 2-12-68 where by preparation of the final decree was stayed and this ex-parte is continuing till to-day.
8. The contention of the learned Counsel for the respondents is that by observing that 'the rest of the decree of the trial court is maintained', the first appellate court shall be deemed to have granted four months' time to the plaintiff from the date of its judgment to deposit the amount awarded under the preliminary decree, and since admittedly, the plaintiffs neither obtained a stay of the judgment of the first appellate court, nor deposited the amount within four months from 4-7-1938, the plaintiffs' suit shall be deemed to have been dismissed. In support of his contention, the learned Counsel has relied upon Joseph v. Varkey Thomas AIR 1957 TC 94, Ram Dhani Ram v. Sital Prasad Ram : AIR1959Pat181 , Dr. Ram Kumar v. Mahadeo Lal and Anr. ILR (1961) 11 Raj. 1062 and an un-reported Bench decision of this Court-D B. Civil Regular First Appeal Nos. 50/55 & 48/56 : Tikam Chand Sharma v. Ram Pal and Ors.-decided on 12th March, 1964.
9. In Joseph John v. Varkey Thomas AIR 1957 TC 94, it was held by a Full Bench of the Tntvancor--Cochin High Court in agreement with the decision of Madras High Court in Nimmalax Mdhankali v. K. Subba Rao AIR 1968 Mad. 919 that:
Where the appellate decree confirms the decree of the first court and is silent regarding the time fixed for payment by the court of first instance, a further period would not be given for payment from the date of the appeal decree.
10. In Ram Dhani Ram v. Sital Ram : AIR1959Pat181 . the learned judges of the Patna High Court held that 'Where there is an express provision in the decree that in default of the payment of the amount within the time prescribed by the Court, the suit shall stand dismissed and no deposit is made within the time prescribed, the Court has no jurisdiction to extend the time prescribed by the decree.'
11. In Dr. Ram Kumar v. Mahadeo Lal and Anr. ILR (1961) 11 Raj. 1062 it was held by Jagat Narayan J. that-
Where the decree of the trial court is confirmed by the appellate court without variation, the judgment of the appellate court does not enlarge the time fixed under the decree of the trial court.
It was also observed:
The mere fact that an appeal has been preferred does not prevent its being executed or enlarge the time for its performance.
In that case, the decree of the trial court was confirmed by the appellate court without any variation and the appellate court did not enlarge the time fixed under the decree of the trial court. In these circumstances the learned Judge was of the view that the time of one month for performance of the terms of the decree granted by the trial court will be reckoned from the decree of the trial court even if that decree was merged.
12. The last case on which strong reliance was placed in the decree of the appellate court by the learned Counsel for the appellant, Tikam Chand Sharma v. Rim Pal and Ors. (supra) was a first appeal from the judgment and final decree of the Sub judge, First Class Ajmer in a suit for redemption The preliminary decree wax passed on 10-12-49 and the final decree on 14-12-54. In the final decree, the plaintiff was called upon to pay the amount adjudged by the court on or before 14th June, 1954, or any later date up to which the time may be extended by the court for that purpose. There was a further condition, that decree that if the amount was not paid within the time originally fixed or extended, the suit would stand dismissed with casts. The plaintiff in that case failed to deposit the decretal amount within the time fixed by the trial court and consequently it was urged in this Court that there was no subsisting decree on the date of hearing and therefore the appeal be dismissed on that ground. Learned Judges held that it was a case of conditional decree and it was not for them to say whether a decree like that could have been rightly passed or not as no objection had been raised in that respect in the grounds of appeal. They were further pleased to hold that since no application for extension of time had been made on behalf of the plaintiff, there was no question of extension of time under Section 148 CPC. In the result, their Lordships came to the that the result of non-payment having been specified in the decree itself, there was no subsisting decree in the plantiff's favour, and therefore, the appeal should be dismissed on that ground alone.
13. After a careful examination of the authorities cited by the learned Counsel for the respondents, I am of opinion that none of them is directly applicable to the present case. In Tikam Chand Shanna's case (supra) an appeal had been filed to this Court from the final decree of the trial court and no effort had been made by the plaintiff at any stage to get the period fixed by trial court for payment of the amount extended. In the present case, however, the defendant has come in second appeal from a preliminary decree and it is not even the contention of the learned Counsel for the respondents that the appellant was bound to deposit the amount within four months of the trial court's decree. From the facts narrated above, it would be clear that after filing the first appeal in the court of the District Judge, Ajmer, the plaintiff obtained a stay order from that court in respect of the direction of the trial court for depositing the amount with in four months. Thus, there is no room for argument that the amount should have been deposited within four months of the trial court's decree and so the learned Counsel for the plaintiff has rightly not advanced such an argument His submission it that he must appellate court while dismissing the plaintiffs appeal and allowing the defendants' cross objection observed that the rest of the decree of the trial court be maintained. By these words, the learned Counsel seeks to argue that a further period of four months from the date of the first appellant's court judgment may be deemed to have been fixed for the deposit of the amount. It is conceded that there is no specific direction in that respect in the judgment and decree of the first appellate court, but this is the necessary inference which the learned Counsel for the respondents wants to be drawn. I find it difficult to accept this contention inasmuch as in order that a direction may operate in terrorem against the litigant, it is highly necessary that such a direction must be in specific terms. To say that the first appellate court fixed a period of four months for the deposit of the amount, from the date of its judgment would tantamount to reading much more than what is contained in the judgment, and in my opinion, it would mean adding a term in the judgment which does not exist. It must also be remembered that the decree of the trial court was confirmed by the appellate court with a variation. In these circumstances, it is the decree of the first appellate court which will be material for the purpose of adjudging whether there is any direction therein in the nature of a penal clause or in terrorem so that laches or delay on the part of the plaintiff may resut in the dismissal of a suit If the decree of the trial court had not been varied and had been confirmed as it is by the first appellate court and the operation of the trial court's decree had not been stayed by the first appellate court, there may have been some force in the contention of the learned Counsel for the respondents.
14. In the case of Joseph John v. Varkey Thoman AIR 1957 TC 94 referred to above, the appellate court confirmed the trial court's decree and was silent regarding time fixed for payment by the court of first instance and therefore the learned Judge held that the party in default is not entitled to reckon the time from the date of the appellate court's decree. That is admittedly not so in the present case in Ramdhaniram v. Sital Prasad Ram : AIR1959Pat181 , it was held that the time fixed by the court for payment in a suit for specific performance of contract need not be extended, admittedly, no such point arises in the present case, and. therefore, these two cases are, in my opinion, beside the point. In Dr. Ram Kumar's case (supra) Jagat Narayan J, held, and rightly, if I may say so with respect, that if the decree is confirmed by the ' appellate court without any variation, then the mere fact of an appeal having been preferred does not prevent its being executed, nor can it be deemed to enlarge the time for its performance. In that case the appellate court had in, fact not enlarged the time fixed by the decree of the appellate court in these circumstances it was held that the time of one month granted by the trial court will be reckoned from the decree of the trial court even though that decree had merged in the decree of the appellate court. Thus, it is quite clear that Dr. Ramkumar's case is completely distinguishable in as much as in the present case the decree has been varied by the first appellate court and the decree of the trial court has merged in the decree of the appellate court. As already stated in the earlier part of this judgment; I am not inclined to accept the contention that a further time of four months was fixed by the first appellate court, but so far as the rationale of that decision is concerned, it is more than clear that it has no application to the facts and circumstances of the present case. I am, therefore, of opinion that the contention of the learned Counsel for the respondents that there subsisting decree and this appeal is liable to be dismissed on that ground alone, has no force and I hereby over rule it.
15. I may however, mention in passing, that the trial court committed an, an error of law in giving such a direction in the preliminary decree in a suit for redemption. A bare reference to Order 34, Rule 7 CPC would make it clear that in a suit for redemption, if the amount is not paid by the plaintiff within the time; fixed by the court in the preliminary decree, the mortgagee has a right to apply for a final decree in case of a mortgage other than a usufructuary mortgage by conditional sale or an anomalous mortgage the terms ot which provide for foreclosure and only and not for sale, that the mortgaged property be sold, or in case of other mortgages, the plaintiff be debarred from all rights to redeem the property. Before such a final decree is passed, the court has jurisdiction to extend the time fixed for payment of the amount found or declared due under the preliminary decree. However, on the view I have taken on the construction of the first appellate court's it is not necessary to go into the question where the trial court's decree was illegal decree. The net result of the foregoing discussion on that the preliminary objection being without force, is hereby disallowed.
16. This brings me to the merits of the appeal. The only point urged by the appellants is that the lower courts erred in awarding the following amounts to the defendant-mortgagees:
(i) Rs. 3,274/8/- on account of cost of additions & alterations alleged to have been carried out by the mortgagees in the mortgaged property;
(iii) Rs. 976/13/- on account of repairs out of which Rs. 262/- is admitted by the learned Counsel for the appellants and this there remains the dispute for Rs 515/13/- (vide Ex. A/ 44 (iii) Out of the interest of Rs 2,030/- awarded by the lower courts, the appellants' contention is that the defendants are entitled to Rs. 567/10/- only. The award of interest pendente lite and future interest on the mortgage-money Rs. 13.00/-/- by the first appellate court has also been contested.
17. Learned Counsel for the appellants has urged that neither the trial court nor the first appellate court have applied their minds to the evidence on record regarding these amounts.
18. I have carefully gone through the judgments of both the lower courts and I am constrained to observe that the contention of the learned Counsel for the appellants is not without force. Admittedly a large number of witnesses and documents have been put on record, especially by the defendant-mortgagees in support of their allegation that these amounts have been spent by them in accordance with the contract between the parties. However, there is not the slightest discussion of this voluminous evidence in the judgment of either court. In these circumstances, there is no alternative left to me but to send the case back to the first appellate court to turn out a proper judgments after hearing arguments of both the parties and after discussing the evidence led by them with respect to each item claimed by the respondents and contested by the appellants. It is hardly necessary to point out that it is the duty of the first appellate court, whose finding of fact has been made final in law, to discuss the evidence led by the parties properly and to give reasons for believing or not believing the same. The item of Rs. 976/13/- consists of six items which are sought to be proved by different exhibits the trial court disposed of this item in one sentence by observing - 'The defendant has produced and proved that the receipts and I find no reason to disbelieve this evid2nce.' It is agreed by learned Counsel for both the parties that there is both oral as well as documentary evidence with respect to these items & the learned Counsel for the appellants further urges that he has a lot of criticism to offer with respect to the last item of Rs. 514/13/-vide Ex. A/44. There is nothing in the Judgment of the trial court that any concession was made on behalf of the plaintiffs with respect to this item. It is then surprising that the trial court should have remained satisfied merely by writing one sentence about this item. The discussion of the first appellate court regarding this item is no better Since only one item of Rs. 514.13- out of this amount is being disputed it is hoped that the first appellate court will properly apply its mind to this item after making reference to all the relevant evidence on the point and give its decision according to law supported by its reasons'. The other major item of Rs. 3,274 regarding which there is also dispute between the parties whether proper notice in respect of this item was given to the plaintiff-mortgagor, all that the learned trial court has said is that the documents Exhibits A 5, A 13, A 20 & A 43 have been proved by the witnesses and there is no rebuttal from the side of the plaintiffs. The judgment is conspicuously silent as to who are those witnesses and how their evidence in this respect is worthy of belief. To say merely that the documents are proved by the witnesses is, in my opinion, wholly insufficient Turning to the judgment of the first appellate court in respect of this item, there is no discussion at all as to how this amount has been proved and by which evidence? All that has been discussed under this item is that the mortgagee had given a notice to the mortgagor regarding this expenditure. Learned Counsel for the respondents no doubt argued that the fact that this much amount was spent was not contested by the defendants before the first appellate court and therefore the first appellate court refrained from discussing the evidence with respect to this item. I am afraid this contention is negatived by what has been said by the learned Additional Civil Judge himself in his judgment where he has framed the points for determination and the very first point formulated by him is whether the defendants are entitled to get more than the mortgage amount and if so, to what extent? This clearly shows that the various amounts claimed by the mortgagee over and above the mortgage money were disputed before him. I do not wish to further dilate on the question that the discussion of the evidence by both the courts below is far from satisfactory. In this view of the matter learned Counsel for both the parties have agreed that the case may be sent back to the first appellate court and not to the trial court as it would further prolong the litigation.
19. I, therefore, in view of what has been stated above, allow this appeal, set aside the judgment and decree of the court below with respect to the disputed items mentioned above and direct the first appellate court to decide this appeal afresh on the lines indicated above. Costs of this appeal shall abide the final result of the case.
20. Learned Counsel for the respondents prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave and the prayer is therefore rejected.