Full Judgment Text
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PETITIONER:
MOHD. ABDUL KHADER MOHDKASTIM & ANOTHER
Vs.
RESPONDENT:
PAREETHIJ KUNJU SAYEDAHAMMED & OTHERS
DATE OF JUDGMENT: 05/11/1996
BENCH:
M.M. PUNCHNI, SUJATA V. MANOHAR
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
The suit property was under a usufructuary mortgage.
The appellant was the mortgagor thereof. The mortgage money
was Rs.18,000/-. In the suit for redemption instituted by
the appellant redemption was sought on payment of
Rs.18,000/-. On November 22,1960 the trial court passed a
preliminary decree in the following terms:
"In the result, the plaintiff is
given a preliminary decree for
redemption of the plaint property
on deposit of the mortgage amount
and value of improvements , if
any, that may be fixed in the final
decree. The plaintiff is allowed to
recover mesne profits at the of
Rs.200/- per mensem from the date
of deposit of the redemption price.
First defendant will apply for the
issue of a commission to assess the
value of improvements. He will
apply within one month from this
date. The parties will bear their
costs"
The said decree was confirmed in appeal on 16.11.1965.
It was claimed that the decree of the trial court has merged
therein and therefore the limitation for all purposes
started from the date of the appellate court’s order. The
appellant claimed that the preliminary decree was deficient
in as much as no time had been fixed for the appellant
depositing the redemption money and that in the nature of
things incomplete since the extent of the claim of the
mortgageerespondent relating to improvements had yet to be
ascertained. On that basis it was claimed that since the
decree had not determined the final amount payable as in
terms of Order 34 Rule 7 the decree could not be called a
preliminary decree at all and was rather a decision
preperatory to a preliminary decree. Therefore there was no
bar for the Court to pass another preliminary decree. Taking
shelter under these arguments time Was sought from the Court
within which the redemption price could be termed as
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payable. The trial court dismissed the application for
ascertainment of time and the High Court confirmed that
view, which has given rise to this appeal.
The terms of the decree ex facie are clear. Its
direction above extracted can be divided into three parts.
Firstly, the plaintiff (the appellant herein) is given a
preliminary decree for redemption of the property on deposit
of the mortgage amount. Secondly, on the appellant
depositing the redemption price, he would ’be entitled to
recover mense profits at the rate of Rs.200/- per mensem
till possession of the mortgaged property was delivered to
him. Lastly if there be any improvement caused by the
dependent-mortgagee then he was required to lay a claim
within the time fixed and apply for appointment of a
commission to assess the value of the improvement. And if
there be any improvement and its value ascertained then the
same was payable by theappellant at the time of passing of
the final decree. Evidently, all these obligations and
counter-obligations were separate in nature and the
plaintiff-appellant was required on his part to deposit the
redemption money which was equivalent to the mortgage money,
ascertained at Rs.18,OOO/- in the plaint, payable forthwith,
and in any case within the statutory period of six months
provided under Order 34 Rule 7 C.P.C. The Court instantly
may have omitted to prescribe the time for payment under the
preliminary decree but that time in no case could exceed six
months from the date of the passing of the decree. If the
Court had failed to mention the period then the plaintiff-
appellant was all the same required to make payment within
the permissible period of six months unless extended by the
Court for reasonable cause shown. Here no application was
made for extension and for a good cause. Rather it was
projected that the time for payment had not arisen and
unless the claim for improvement stood settled (which claim
was never preferred) the occasion for payment had not
arisen. We think that the appellant was in error in reading
the terms of decree in this manner and therefore has to his
neglect. The terms of the decree say otherwise.
For the foregoing reasons we find no merit in this
appeal and the same is accordingly dismissed.