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Azim v. Sultan
Factual and Procedural Background
This opinion concerns an application against the order dated 4th December 1943 by the Subordinate Judge, First Court, Chapra, which disallowed the petitioners' request to deposit the decretal amount under a preliminary decree for redemption of a zarpeshgi bond. The preliminary decree was originally passed on 15th May 1931. On appeal, the appellate court ordered that if the plaintiff deposited Rs. 150 before the month of Jesth next year, he would receive a final decree for possession effective from Asarh next. The appellate order was made on 22nd July 1932, after the month of Jesth of that year, effectively requiring payment before Jesth 1933. A subsequent appeal to the High Court was dismissed on 12th December 1935. The petitioners failed to pay until September 1942, when they applied to the original court for permission to deposit the amount with an extension of time. This application was rejected by the learned Munsif and that order was affirmed by the Subordinate Judge, prompting the present petition.
Legal Issues Presented
- Whether the petitioners are entitled to redeem the mortgaged property by paying the decretal amount after the expiry of the time fixed by the preliminary decree.
- Whether the right to redeem under a preliminary decree is barred by limitation under Article 181 of the Limitation Act.
- Whether an extension of time for payment under sub-rule (2) of rule 7(1) of Order XXXIV, Civil Procedure Code, applies to usufructuary mortgages.
Arguments of the Parties
Petitioners' Arguments
- Before a final decree debarring the plaintiff from all right to redeem is passed, the petitioners are entitled to redeem the mortgage on payment of the amount declared by the preliminary decree, even after the expiry of the time fixed by the court.
Opposite Party's Arguments
- The petitioners' right to redeem under the preliminary decree is barred by limitation under Article 181 of the first Schedule of the Limitation Act.
- The petitioners should be compelled to file a fresh suit for redemption instead of seeking relief in the present litigation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shaikh Somesh v. Ram Krisana | Right of redemption is not lost until an order absolute for foreclosure is made. | Supports the principle that the mortgagor retains the right to redeem until final foreclosure. |
| Par Das Singh v. Dwarka Singh | Same principle as above regarding right to redeem. | Reinforces that redemption rights subsist until final decree bars them. |
| Saligram v. Muradan | Specifically concerning usufructuary mortgage and redemption after delay. | Held that mortgagor was entitled to redeem even after delay in payment under preliminary decree. |
| Narayana Reddi v. Papayya | Right to redeem persists until final decree extinguishes it. | Supports the ongoing right to redeem despite delay before final decree. |
Court's Reasoning and Analysis
The Court analyzed the nature of a preliminary decree in suits for redemption of usufructuary mortgages under Order XXXIV of the Civil Procedure Code. It noted that while the preliminary decree may fix a time for payment, default in payment within that time does not bar the mortgagor's right to redeem. The Court explained that unlike mortgages other than usufructuary mortgages, where the mortgagee can apply for a final decree upon default, in usufructuary mortgages only the mortgagor can apply for a final decree on payment of the decretal amount. The Court distinguished the provisions for extension of time under sub-rule (2) of rule 7(1), which apply only to foreclosure or sale mortgages and not usufructuary mortgages. The mortgagor's right to redeem subsists until a final decree debars such right or the property is sold and the sale confirmed in foreclosure or conditional sale mortgages. The Court relied on established case law affirming that the right to redeem is not extinguished until an order absolute for foreclosure is made. It rejected the limitation argument, holding that the mortgagor retains the right to apply for a final decree until barred and that no fresh suit is necessary if the remedy can be granted in the current litigation.
Holding and Implications
The petitioners are entitled to redeem the mortgaged property by payment of the decretal amount declared under the preliminary decree, despite the delay in payment, and to apply for a final decree directing possession.
The Court allowed the petition with costs and hearing fee. The direct effect is that the petitioners retain their right to redeem and need not file a fresh suit. No new precedent was established, but the decision clarifies the application of Order XXXIV rules and limitation principles in the context of usufructuary mortgage redemption.
Pande, J.:— This is an application against the order dated, the 4th December, 1943, of the Subordinate Judge, First Court, Chapra, which disallowed the petitioners' prayer for permission to deposit the decretal amount under a preliminary decree for the redemption of a zarpeshgi bond.
It appears that the preliminary decree was passed on the 15th May, 1931. On appeal the appellate court directed that
“if the plaintiff deposits or pays Rs. 150 before Jesth next, he shall get a final decree for possession with effect from Asarh next”.
This order was made on the 22nd July, 1932, that is, after the month of Jesth of that year. Therefore under the preliminary decree as modified by the appellate court the petitioners were required to pay the amount of Rs. 150 before the month of Jesth of 1933. Against that order there was an appeal to the High Court which dismissed the appeal on the 12th December, 1935. The petitioners failed to make payment till September, 1942, when an application was made on their behalf to the original court to accept the decretal amount by extending the time. The learned Munsif rejected the prayer. The order was affirmed by the learned Subordinate Judge who heard the appeal. Hence this petition.
It has been urged for the petitioners that before a final decree debarring the plaintiffs from all right to redeem the mortgage property is passed, they are entitled to redeem the mortgage on payment of the amount declared by the preliminary decree even after the expiry of the time for payment fixed by the court. The learned Advocate for the opposite-party contended that the petitioners' right to redeem the mortgage under the preliminary decree is barred by the operation of Article 181 of the first Schedule of the Limitation Act.
Now a preliminary decree in a suit for redemption of a usufructuary mortgage may, under clause (c)(i) of rule 7(1) of Order XXXIV, Civil Procedure Code, fix a time for payment of the amount declared due under the decree. But default in making the payment of the amount declared under the decree within the time fixed does not operate to debar the plaintiff-mortgagor from all right to redeem the mortgaged property. If payment of the amount declared due under the preliminary decree is not made within the time fixed by the court, then under clause (c)(ii) of rule 7(1) a mortgagee-defendant is entitled to apply for a final decree in the case of a mortgage other than a usufructuary mortgage. It follows that the mortgagee is not entitled to apply for a final decree in the case of a usufructuary mortgage. It is only the plaintiff-mortgagor who can apply to the court to pass a final decree and that on payment of the amount declared due under the preliminary decree to order the mortgagee to put him in possession of the mortgaged property. The terms of final decree in the case of a mortgage other than a usufructuary mortgage vary according to the nature of the mortgage as provided by sub-rule (3) of rule 8, Order XXXIV of the Code of Civil Procedure. The obvious reason for the exception in regard to usufructuary mortgage from the effect of default in making payment of the decretal dues within the time fixed by the court seems to be that the mortgagee being in possession of the property his interest is not in any way affected by the plaintiff's failure to make payment within the time fixed by the preliminary decree. It is the mortgagor's interest that suffers for until he makes payment he cannot get back the mortgaged property.
In the case of a usufructuary mortgage the mortgagor need not ask for extension of the time fixed for payment by the preliminary decree under the provisions of sub-rule (2) of rule 7. The provisions of that sub-rule apply to the case of mortgage for foreclosure or sale only. The effect of extension of time under the said sub-rule is postponement of the time for passing the final decree for foreclosure or sale, as the case may be which is not allowed in the case of a usufructuary mortgage.
The mortgagor's right to redeem the mortgaged property subsists until a final decree debars the mortgagor from all right to redeem and that in the case of a mortgage by conditional sale, or an anomalous mortgage, the terms of which provide for foreclosure only and not for sale. In the case of a final decree that provides for sale of the mortgaged property, or a sufficient portion thereof, to satisfy the mortgage debt, the mortgagor is entitled to redeem the mortgaged property even after sale has taken place but before confirmation of the sale.
It is in the case of a mortgage decree by conditional sale, or anomalous mortgage the term of which provide for foreclosure only, where the final decree declares the plaintiff debarred from all right to redeem the mortgaged property, or, where in pursuance of the final decree the mortgaged property has been sold and the sale is confirmed, that the right to redeem is extinguished. In other cases the right to redeem the mortgaged property subsists and so long the right is there it is always open to a mortgagor to avail himself of that right on payment of the amount declared due under the preliminary decree.
The above view finds support from several reported decisions of which the following may be referred: Shaikh Somesh v. Ram Krisana, Par Das Singh v. Dwarka Singh(2), Saligram v. Muradan(3) and Narayana Reddi v. Papayya(4). These cases are authority for the proposition that the right of redemption is not lost until the order absolute for foreclosure is made. The case of Saligram v. Muradan seems to be directly in point. It was a case of a usufructuary mortgage. The preliminary decree was passed in the year 1893 and the mortgagor deposited the decretal dues in the year 1901. It was field that the mortgagor was entitled to redeem.
In the above view of the law it must be held that the petitioners are entitled to redeem the mortgaged property on payment of the amount declared due under the preliminary decree even though they offered to deposit the amount nearly seven years after the preliminary decree was finally affirmed on dismissal of the appeal by the High Court. On payment of the decretal dues the petitioners shall be entitled to apply to the court to pass a final decree directing the opposite party to put the petitioners in possession of the mortgaged property. Therefore the petition must succeed.
The Advocate for the opposite party contended that the petitioners' right to redeem the mortgaged property under the preliminary decree is barred by limitation, but no question of limitation arises in this case as the plaintiff has a right to apply for final decree until his right to redeem the mortgaged property is barred. It is not disputed that the plaintiff has still the right to redeem the property, but it is contended that he should bring a fresh suit for redemption. I do not think that it is necessary to compel him to bring a fresh suit if the appropriate remedy can be granted in this litigation.
In the circumstances I would allow the petition with costs. Hearing fee one gold mohur.
Fazl Ali, C.J:— I agree.
Application allowed.
K.D
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