1. A preliminary decree for redemption of a usufructuary mortgage was passed on the 15th October, 1935, and the time fixed for payment was 15th January, 1936. The plaintiff did not deposit the amount on or before that date and did not ask for extension of the time under Order 34, Rule 7(2). She deposited the amount towards the end of 1942 and filed I. A No. 93 of 1943 on the 2nd February, 1943, under Order 34, Rule 8 of the Code of Civil Procedure asking the Court to pass a final decree with a direction to the'defendant to deliver the mortgaged property to her. The trial Court dismissed the petition and on appeal the Subordinate Judge confirmed the decree of the trial Court and hence this second appeal.
2. The appellant urges that her case is covered by the terms of Order 34, Rule 8 and that it enables her to pay into Court the amounts due from her as fixed under Rule 7(1) of Order 34, at arty time before a final decree debarring the plaintiff frpift all right to redeefn the mbrtgaged property is passed. Order 34 Rule 7 provides In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree-
(a) ordering that an account be taken of what was due to the defendant....
(b) declaring the amount so due at that date; and
(c) directing (i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken. the defendant shall deliver up. to the plaintiff, or to such person as the plaintiff appoints, all documents in'his possession or power relating to the mortgaged property. . . . . and shall also, if necessary, put the plaintiff in possession of theproperty; and
(ii) that if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree--
(a) in the case, of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or
(b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property.
2. Sub-rule (2) of Rule 7 provides that the Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of the: final decree for foreclosure or, sale, as the case may be, extend the time/fixed for,the payment of the amount found or declared due under Sub-rule (1), or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. Rule 8, Sub-rule (1) provides :
Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 7, the Court shall, on application made by the plaintiff in ttis behalf, pass a final decree.
3. The respondent urges that in the case of a preliminary decree for redemption of a usufructuary mortgage, the only right that the plaintiff may have after the time fixed for payment has expired, is the remedy provided under Rule 7, Sub-rule (2) and that he cannot exercise the right given under Rule 8, Sub-rule (1)' Rule' 8:(i) give's the right to a mortgagor to pay the amounts due from him under Sub-rule (1) of Rule 7 at any time before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the 'confirmation of the; sale held in pursuance of a final decree for salepassed under Rule 8(3)(b). Prima facie even in the case of a usufructuary mortgage, the mortgagor would seem to have a right of paying under Rule 8(1) the amount fixed under Rule 7(1) and ask for consequential reliefs. The argument is that Rule 8(1) fixes as the outer limit the passing of a final decree debarring'the plaintiff from all right of redemption or the confirmation of a sale and that as neither is possible in the case of a usufructuary mortgage, Rule 8(1) does not at all apply to usufructuary mortgages. It is said that possibly the mortgagor has a remedy under Rule 7(2),that for getting relief under that rule an application by the mortgagor is necessary, that the application must be" filed within three years from the date when the right to apply accrues under Article 181 of the Second Schedule of the Limitation Act and that therefore no relief at all can be given to the mortgagor more than three years after the date fixed for payment under Rule 7, Sub-rule (1)., I do hot agree with the view that in the case of a usufructuary mortgage the plaintiff has no right of payment Under Rule 8, Sub-rule (1) for the reason that a usufructuary mortgagee-defendant has no right of applying for a final decree debarring the plaintiff from all right to redeem, the mortgaged property or of bringing the property to sale. The outer limit beyond which payment under rule '8, Sub-rule (i) cannot be made is the passing of a final decree debarring the plaintiff from all right to redeem the mortgaged property or the confirmation of a.sale held under Rule 8(3). In a case of mortgage by,conditional sale, or Other cases where a foreclosure decree of; this;kindis.-possib,lef this limit will be reached when the mortgagee applies and gets a decree debarring the mortgagor of all right of redemption. In a case where a sale is possible, the outer limit is reached when the sale held in pursuance of Rule 8, Sub-rule (3)(b) is confirmed. This does not, in my opinion, mean that in the case of a usufructuary mortgage, no payment can be made except under Rule 7(2) for the reason that neither foreclosure nor sale is possible. If for the reason that Rule 8(1) provides that payment may be made before a final foreclosure order is passed or a sale confirmed the rule is not to apply to usufructuary mortgages, the same reason should lead to the conclusion that Rule 7(2) also should not apply to usufructuary mortgages. Rule 7(2) says this :
The Court may 1 - at any time before the passing of a final decree for foreclosure or sale as the case may be, extend the time fixed for payment of the amount found or declared due under Sub-rule (1) .
4. This rule also fixes as the outer limit, the passing of a final decree for foreclosure or sale. Neither is possible in the case of a usufructuary mortgage and so, the result must be that no extension of time is possible in cases of usufructuary mortgages. If it is conceded that Rule 7(2)- applies and that the mortgagor may have the time extended under that rule even in a case of a preliminary decree for redemption of a usufructuary mortgage, I fail to see how a different construction is possible in the case of Rule 8(1). The only reasonable construction is to say that in the case of a usufructuary mortgage, there is no outer limit beforevwhich action must be sought.
5. The next argument is that an application'is necessary and that under Article 181 of the Second Schedule to the Limitation Act an application must be filed within three years from the expiry of the time fixed in the preliminary decree for payment, that being the time when the right to apply accrued. I am unable to accept this argument. Under Rule 7(2) the limit is expressly stated to be the passing of a final decree for foreclosure or sale." That refers obviously to a final decree for foreclosure or sale at the instance of the defendant-mortgagee. The defendant-mortgagee has three years from the date fixed for payment to apply for a final decree for foreclosure or sale. Suppose the mortgagee-defendant applies just a day before the expiry of three' years from the date fixed for payment for a final decree for foreclosure or sale, and it takes some months for effecting service on the mortgagors, the passing of the final decree will necessarily be beyond the three years' period. Yet rule (2) expressly provides that at any time before the final decree for foreclosure or sale is passed the Court may on good cause shown extend the time fixed. This meansthat action under Rule 7(2) may be invoked by the mortgagor beyond three years from the date of payment.
6. I cannot therefore accept the argument that for action under Rule 7(2), an application by the mortgagor is necessary which according to the respondent has to be filed within three years from the date fixed for payment. This perhaps is the reason why the Legislature has advisedly not provided that action under Rule 7(2) should be invoked by an application. Wherever an application is necessary, the Code has expressly stated so. It is unnecessary to refer to the various provisions of the Code which expressly provide for applications to be filed. After payment under Rule 8(1) the mortgagor has to apply for a final decree or an order in case a final decree has been passed for the reliefs provided in Rule 8(1)(b) and (c). For this application the starting point is the payment by the mortgagor. It will be noticed that after payment the mortgagor must file an application for a final decree or order. No such provision exists for payment under Rule 8(1).
7. The same reasoning applies to payment under Rule 8(1) of Order 34, in cases admittedly covered by that rule, i.e., in cases where a final decree for foreclosure or sale is possible. In such cases reading Order 34, Rule 8(3), with Article 181 of the Second Schedule of the Limitation Act, the defendant-mortgagee may within three years from the date fixed for, payment apply for a final decree for foreclosure or sale.-, If the application is made on the eve of the expiry of the three years' period, the passing of the final decree for foreclosure will go beyond the period, and a sale in executi6n of a finaldecree for sale may take years after the expiry of the three years' period. Yet the mortgagor has by the express language, a right to pay before the passing of the final decree for foreclosure or before the confirmation of the sale. This is the reason why for payment under Rule 8(1) no application is provided as necessary.
8. It is then argued that if no application is necessary and there is no time limit of three years from the date fixed for payment, a mortgagor may wait for years and years and then invoke action. This argument applies equally to a case where final decrees for foreclosure or sale are possible and the mortgagee does not apply for foreclosure or sale. The argument overlooks the fact that in cases where a final decree for foreclosure or sale is possible, the defendant-mortgagee may put an and to the mortgagor's power of applying at any time beyond three years by making the necessary application for a final decree for foreclosure or sale. If the defendant-mortgagee in such a case does not choose to apply for a final decree, there is no reason why there should be any limit of time for action by the mortgagor either under Rule 7(2) or under Rule 8(1) at least in cases where a final decree for foreclosure or sale is possible.
9. Then it is said that a usufructuary mortgagee-defendant has not even the right of applying for a final decree and of so forcing action on the part of the mortgagor. This again does not appear to be right. A preliminary decree does not put an end to a suit whether the preliminary decree is one for partition as in Lachmi Marain Marwari v. Malmukund Marwari (1924) 47 M.L.J. 441 : L.R. 51 I.A. 331 : I.L.R. 4 Pat. 61 (P.C.) or for accounts or for sale or foreclosure or for redemption. The suit is considered to be pending until it is terminated. In cases where a final decree is possible, the suit terminates where a final decree is passed. In a case of a preliminary decree for redemption of a usufructuary mortgage, if the mortgagor pays the amount, a final decree has to be passed. If he does not apply, it would seem that the mortgagee-defendant may ask the Court to dismiss the suit. That such a course is possible is seen from the decision of the Allahabad High Court in Behari v. Ramanand A.I.R. 1933 All. 157. There in a suit for redemption of a usufructuary mortgage, the Court passed a decree under Order 34, Rule 7 of the Civil Procedure Code fixing a date for payment and the decree provided that on failure of payment by the plaintiff the suit shall stand dismissed. Plaintiff failed to pay the amount within the time fixed and afterwards applied for extension of time and the Court granted it. On deposit of the amount a final decree was passed directing delivery of possession. The matter came up in second appeal before the High Court. The High Court pointed out that a decree under Order 34, Rule 7, Sub-rule (1) was only a preliminary decree and that the suit should be put an end to by a subsequent order passed after the time fixed had elapsed. The learned Judges said this:
We have no doubt whatever that the Court did not intend to pass a final decree concluding the suit. The decree says in so many words that it is a preliminary decree under Order 34, Rule 7, Civil Procedure Code, and in further adding that ' on failure their suit shall stand dismissed with costs ' we do not think the Court meant that without any further order of the Court the suit should stand automatically dismissed. All it meant was that, on failure of the mortgagor to deposit the mortgage money within the time allowed for redemption, it would be open to the mortgagee to apply for dismissal of the suit, and that the order of dismissal, if passed, would be embodied in a final decree which would conclude the suit. In this view, it was open to the Court of first instance to grant an extension of time to the mortgagor .
10. There is no doubt no provision to that effect in the Code but it is possible to postulate a power in Court to put an end to the action.
11. Even if we take it that in the case of a decree for redemption of a usufructuary mortgage, the defendant has no right of asking the suit to be dismissed for non-payment by the mortgagor of the amount decreed the suit will have to be considered to be pending and the mortgagor will have the right of paying the amount at any time. As I pointed out above, in the case of a mortgage by conditional sale, if after a preliminary decree for redemption, the mortgagor does not pay and the mortgagee does not ask for final decree for foreclosure within the time available to him, the result may be that the suit should be considered to be pending as it has not been properly terminated. In that case the mortgagor would have the right of payment at any time under Rule 8(1). Similarly in cases where the defendant-mortgagee can ask for final decree for sale. I do not see therefore any substance in the argument based on the possibility of payment at any time. This may be no doubt very inconvenient. But the Legislature has not provided that the suit may be terminated if neither the mortgagor nor the mortgagee obtained a final decree. The Privy Council has ruled that in a case of a preliminary decree for partition the suit cannot afterwards be dismissed for non-prosecution and must be kept pending. The same result may follow in cases of redemption suits where after a preliminary decree, no action is taken by the parties. It may well be that as the rights of the parties are declared by the preliminary decree, the suits cannot be dismissed for non-prosecution.
12. Whatever that may be, so long as the suit is pending, the mortgagor has the. right expressly given to him under Rule 7(2) and under Rule 8(1) of Order 34, Civil Procedure Code. The whole scheme of Order 34, Civil Procedure Code, is to give the mortgagor an opportunity of getting the time fixed in the preliminary decree for payment of the amount extended. In cases of suits by the mortgagees for foreclosure or sale, provision is made for such extension at the instance of the mortgagor on his showing good cause. Rule 2(2) provides for such extension in a suit for foreclosure. Rule 4(2) provides for similar power in a suit for sale. Without the necessity of showing good cause, the mortgagor is also given by Rule 3 of paying the amount decreed at any time before a final decree debarring the defendant from all right to redeem the mortgaged property is passed. Similarly in suits for sale the Code goes -further and vrule 5 provides that such payment may be made at any time before confirmation of a sale held in pursuance of a final decree for sale.
13. Likewise in suits for redemption filed by the mortgagors we have Rule 7(2) corresponding to rule a (2) and Rule 4(2) enabling the plaintiff-mortgagor of getting an extension of time on showing good cause at any time before a decree for foreclosure or sale is passed. Again Rule 8(1) provides just as rules 3 and 5 that before a final decree debarring the mortgagor of all right to redeem the property is passed or before the confirmation of a sale held in pursuance of a final decree for sale passed under Rule 8(3)(b), the mortgagor may make the payment and that without the necessity of showing good cause. There can be no doubt that these double opportunities given by the Legislature were available to mortgagors suing for redemption of a usufructuary mortgage also prior to 1st April, 1930. Under the rules of Order 34, as they then stood, in a suit for redemption of a usufructuary mortgage, the defendant-mortgagee could, in case of non-payment by the plaintiff-mortgagor, ask for a final decree for sale. Why this was omitted it is difficult to see. Anyway while omitting the right of a usufructuary mortgagee to ask for a final decree for sale, the Legislature left Rules 7(2) and 8(1) as they stood. There is no intelligible or apparent reason why, only in the case of redemption of a usufructuary mortgage, the mortgagor should not have the right of getting an extension even by showing good cause under Rule 7(2) or without showing any cause under Rule 8(1). Under the Code as it stood prior to 1st April, 1930, both Rule 7(2) and Rule 8(1) applied to cases of usufructuary mortgagees because a final decree for sale was expressly granted to a usufructuary mortgagee-defendant in a suit for redemption of such a mortgage. If the contention of the respondent is accepted, it would follow that after the time fixed for payment has elapsed, the mortgagor has in such a case no remedy at all and must resort to the doubtful and certainly very expensive remedy of a fresh suit for redemption. I do not think that such a result was intended and Courts should, if it is possible to do so, construe both Rule 7(2) and Rule 8(1) as applicable to suits for redemption of usufructuary mortgages as well. The trouble is caused by piecemeal legislation and want of due care to see that the necessary amendments in other parts of the Code are also made.
14. In the result, the decrees of the lower Courts are reversed and a final decree under Order 34, Rule 8(1) will be drawn up granting the reliefs (a), (b), (c) of the said rule. The appellant will have her costs throughout.