Full Judgment Text
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PETITIONER:
GYASI RAM
Vs.
RESPONDENT:
BRIJ BHUSHAN DAS AND ORS.
DATE OF JUDGMENT:
30/03/1966
BENCH:
ACT:
Code of Civil Procedure (Act 5 of 1908) O.XXXIV, r. 7(1) (c)
(i) and (ii)-"Amount adjudged in respect of subsequent
costs, charges, expenses and interests",-Scope of.
HEADNOTE:
A preliminary decree was passed in the appellant’s suit for
redemption of a mortgage. The decree specified the amounts
due as principal and interest, provided for payment of
future interest at 3 % from the date of decree till date of
realisation, and payment of the amount due by a certain
date. It also provided that, if payment was made by that
date, a final decree would be passed in favour of the
appellant, but that, if the payment was not so made, the
respondent would be entitled to apply for a final decree for
foreclosure. The appellant appealed against the preliminary
decree to the High Court and applied for stay of the order
requiring him to deposit the decretal amount within the date
fixed by the trial court, and the High Court granted stay on
his undertaking to pay 9 % interest instead of 3 %, during
the period of stay. Subsequently, the High Court dismissled
the appeal and confirmed the preliminary decree, but, the
additional amount due for the period of stay on account of
the undertaking, was not included by the High Court in the
preliminary decree. The appellant then applied for a final
decree in his favour, after depositing a sum which was more
than the amount to be deposited when calculated according to
the preliminary decree, but was less than the amount when
circulated according to the condition imposed by the High
Court in its stay order. The trial Court however directed
that a final decree for foreclosure in favour of the
respondent be drawn up. On appeal, the lower appellate
court ordered that a final decree be drawn up in favour of
the appellant. In second appeal, the High Court took the
view that the appellant had to deposit the entire amount due
on the date of the deposit, as per its direction in the stay
order, and as there, was a shortage on the date of deposit-
though the shortage was made up after the judgment of the
lower appellate court-only a final decree for foreclosure
could be passed in the respondent’s favour.
In appeal to this Court,
HELD:The appellant was entitled to a final decree.
In order that a final decree may be passed in favour of the
appellant, he had to carry out before a final decree is
passed, the terms of the preliminary decree and to pay "the
amount adjudged due in respect of the subsequent costs,
charges, expenses and interests" under O.XXXIV, r. 7(1) (e)
(i) and (ii) of the Civil Procedure Code. The appellant had
carried out the terms of that decree by the deposit made by
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him and he had nothing to pay on account of Subsequent
charges, costs, expenses and interest, because, the extra
interest of 6% was not made a part of the decree, and it
could not come within the words "in respect of subsequent
costs, charges, expenses and interests." as it arose out of
an independent order of the High Court
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and was only payable on account of the undertaking for
purposes of stay. Further, such subsequent costs. charges,
expenses and interest have to be adjudged before the
mortgagor is asked to deposit the amount. As regards the
appellant’s undertaking in the stay matter the court could
insist on his honouring it before the final decree is
passed. [112 F-113 C].
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 959 of 1964.
Appeal by special leave from the judgment and decree dated
March 16, 1963 of the Madhya Pradesh High Court in Second
Appeal No. 86 of 1962.
S. V. Gupte, Solicitor-General, Rameshwar Nath, S. N.
Andley P. L. Vohra and Mahinder Narain, for the appellant.
A. K. Sen and R. Gopalakrishnan, for respondent no. 1.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
judgment of the Madhya Pradesh High Court and arises in the
following circumstances. The appellant brought a suit for
redemption of certain mortgaged property. A preliminary
decree was passed in the suit on February 3, 1954. It
specified the amount due as principal and the amount due as
interest upto a certain date. It also provided that future
interest was to be paid at three per cent per annum on a
certain sum from that date till the date of realisation.
Parties were to bear their own costs. Further the decree
provided for payment of the amount due on or before July 15,
1964 or within such time as might be extended. It also
provided that if payment was made within the time limited
under O.XXXIV r. 7(1)(c) of the Code of Civil Procedure,
final decree would be passed. In the alternative it was
provided that if the deposit was not made, the respondent
would be entitled to apply for passing of a final decree
praying that the right of the appellant to redeem the
mortgaged property be debarred.
There were appeals by both parties from this preliminary
decree to the High Court. In the meantime the appellant had
prayed for extension of time and the trial court had
extended time for making payment upto August 15, 1954.
About the same time, the appellant applied to the High Court
praying that the order requiring him to deposit the decretal
amount by August 15, 1954 be stayed till the disposal of the
appeal by the High Court. On this application, the High
Court passed an order on July 26, 1954. This order provided
that if the appellant gave an undertaking to pay nine per
cent per annum interest instead of three per cent per annum
during the period of stay, the order of the trial court
directing the appellant to deposit the decretal amount by
August 15, 1954 would be stayed. Thereupon the appellant
gave an undertaking to the trial court on August 7, 1954
that he would pay nine per cent per annum simple interest
instead of three per cent per annum during the period
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of stay. In consequence the order of stay passed by the
High Court came into force and no deposit was made by August
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15, 1954. On October 16, 1958, the High Court dismissed
both the appeals and the preliminary decree stood confirmed.
On March 20, 1959, the appellant applied to the trial court
for permission to deposit the sum of Rs. 42,204/5/-. On
March 27, 1959, the trial court permitter the appellant to
deposit the amount but made it clear that this did not
amount to, any extension of time for making the deposit, and
the question whether the deposit was made within time would
be decided after hearing both parties. Notice was also
issued to the respondent on the same date. On March 28,
1959, the appellant deposited the amount. On April 8, 1959
the respondent appeared and objected that the amount due was
not Rs. 42,204/5/- but Rs. 46,882/6/6 and therefore the
deposit was short by a sum over Rs. 4,000/-. Thereupon the
appellant deposited a further sum of Rs. 4,590/- on April
9,1959 and prayed for a final decree in his favour. The
trial court held on April 18, 1959 that the deposit was made
beyond time and therefore directed that a final decree for
foreclosure in favour of the respondent be drawn up. The
appellant then went in appeal to the District Judge. The
Additional District Judge who heard the appeal rejected the
memorandum of appeal as insufficiently stamped The appellant
then filed a revision before the High Court. The High Court
allowed the revision on July 22, 1961 and remanded the
appeal to the Additional District Judge for decision on the
merits. On March 23, 1962, the Additional District Judge
allowed the appeal holding on the basis of O.XXXIV, r. 8
that as the amount had been paid before the final decree was
passed, it was within time. Consequently the Additional
District Judge ordered that a final decree be drawn up in
favour of the appellant. It may be noticed that it was also
contended before the Additional District Judge that the
amount deposited was short by Rs. 88/ 1/-. The Additional
District Judge pointed out that this was not made a ground
of attack in the trial court. In any case be held that the
amount which had to be deposited was as required by the
preliminary decree and that the same had certainly been
deposited. We may add that it is not in dispute between
the’ parties that if the amount to be deposited is to be in
accordance with the preliminary decree, the appellant has
deposited that amount, rather more. The shortage has
occurred because for the period of stay the High Court had
ordered the payment of an extra six per cent per annum
interest and it is with respect to that interest that the
shortage has occurred.
The respondent then went in second appeal to the High Court.
The High Court agreed with the Additional District Judge.
and held that in view of O.XXXIV r. 8(1) the deposit made on
April 9, 1959 before the final decree was passed on April
18, 1959 was within time, even though the money might have
been deposited
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after the time fixed under O.XXXIV r.7. But the High Court
also took the view that the mortgagor-appellant had to
deposit the entire amount due on the date of the deposit and
as there was a shortage of Rs. 88/1/-, the entire amount had
not been deposited and in consequence no final decree could
be passed in favour of the appellant. In the result the
High Court set aside the order of the Additional District
Judge and restored the order of the trial court passing a
decree for foreclosure in favour of the respondent.
Thereupon the appellant obtained special leave from this
Court, and that is how the matter has come before us.
The only question raised on behalf of the appellant is that
he had deposited the amount which was strictly due under the
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preliminary decree and something more. The shortage was
only on account of the sum due as a result of the stay order
passed by the High Court by which he was required to pay six
per cent per annum more as interest for the duration of the
stay. It is urged that this amount could not be taken into
account in considering the question whether the appellant
bad deposited’ the entire amount due under the preliminary
decree. We are of opinion that there_ is force in this
contention and the appeal must succeed. Under O.XXXIV, r.
8(1) the mortgagor can deposit all amounts due under O.XXXIV
r. 7(1) before the final decree debarring him from all
rights to redeem is passed. Order XXXIV r. 7(1) lays down
what a preliminary decree should contain and we are in the
present case concerned with cls. (b) and (c) thereof. In
this case the preliminary decree had declared the amount due
upto a certain date towards principal and interest and had
also provide for three per cent per annum interest on a
certain sum from that date and had directed as required by
cl. (c) of O. XXXIV r. 7(1) that if the mortgagor-plaintiff
paid in court the amount found before a certain date a final
decree in his favour would be passed. The preliminary
decree also laid down that if payment was not made within
the time fixed a final decree for foreclosure in favour of
the defendant-mortgagee would be passed. Now under O.XXXIV
r. 7(1)(c)(i) and (ii) what the appellant had to deposit was
the amount found under the preliminary decree and also "the
amount adjudged due in respect of subsequent costs, charges,
expenses and interests" It is not in dispute, as we have
already indicated that the appellant paid the amount found
due under the preliminary decree and also the subsequent
interest as provided in-the decree. Only there was a
shortage in the extra amount he had undertaken to pay as
extra interest at the rate of six per cent per’ annum for
the period of stay. The question is whether this amount can
be said to be within the words "the amount adjudged due in
respect of subsequent costs, charges, expenses and
interests". We are of opinion that this extra amount which
was to be paid on account of the undertaking of the
appellant for the purpose of stay cannot come within the
words "in respect of subsequent costs, charges,
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expenses and interests". It is not in dispute that the High
Court dismissed the appeal of the appellant in 1958 and
confirmed the preliminary decree and that the amount due on
account of the undertaking to pay extra interest at the rate
of six per cent per annum for the period of stay was not
included by the High Court in the preliminary decree. This
amount arose out of an independent order of stay and though
the appellant was bound to pay it in view of his
undertaking, it was not made a part of the amount due under
the preliminary decree. Nor can it be said that it was due
in respect of subsequent costs, charges, expenses and
interests. Besides, such subsequent costs, charges,
expenses and interests have to be adjudged before the
mortgagor is asked to deposit the amount and it is not in
dispute that no adjudgement as to any subsequent costs,
charges, expenses and interests was made. So in order that
a final decree may be passed in favour of the appellant, he
had to carry out the terms of the preliminary decree and it
is not in dispute that he had carried out the terms of that
decree, and he had to pay nothing account of subsequent
charges, costs, expenses and interests, for nothing was
adjudged in respect of these. Nor as we have said already
can the amount due as extra, interest on the basis of the
undertaking given by the appellant for the period of stay be
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considered to be of the nature of subsequent costs, charges,
expenses and interests mentioned in O.XXXIV r. 7(1)(c)(i)
and (ii).
It is however urged that on this view there would be no way
to enforce the appellant’s undertaking to pay extra interest
for the period of stay. We do not think so. It would in
our opinion be in order for the court to insist before it
passed the final decree that the appellant honours his
undertaking. But that is not to say that this amount due
under an independent order of the High Court in connection
with stay became part of the amount due under the
preliminary decree or could be considered to be "subsequent
costs. charges, expenses and interests". We may add that
the shortage in question was made good by the appellant soon
after the order of the Additional District Judge and long
before the judgment of the High Court. As we have come to
the conclusion that this amount due on account of the
undertaking given by the appellant in the matter of stay
cannot be taken to be part of the amount due under the
preliminary decree, it must be held that the appellant was
entitled to a final decree in his favour. We therefore
allow the appeal, set aside the order of the High Court and
restore the order of the Additional District Judge. The
respondent will be entitled to withdraw the amount deposited
by the appellant including the amount deposited on April 21,
1962 on the conditions in that order. In the circumstances
however we pass no order as to costs throughout.
Appeal allowed.
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