GYARSI BAI Vs. DHANSUKH LAL

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of a Division Bench of the Rajasthan High Court in S. B. Civil Revision No. 181 of 1956.

(2.) The plaint-schedule properties originally belonged to one Noor Mohammad, his wife and son. On Sept. 14, 1936, they mortgaged the said properties with possession to B. F. Marfatia for a sum of Rs. 25,000. On February 22, 1938, the said mortgagors executed a simple mortgage in respect of the same properties to one Novat Mal for Rs. 5,000. On December 21, 1942, Radha Kishan, Har Prasad and Pokhi Ram acquired the equity of redemption in the said properties in an auction sale held in execution of a money decree against the mortgagors. On February 14, 1950, and March 13, 1950 Seth Girdhari Lal, the husband of Appellant No. 1 herein, purchased the mortgagee rights of Novat Mal and Marfatia respectively. On May 1, 1950, Girdhari Lal was put in possession of the mortgaged properties. On July 22, 1950, Respondents 9 to 11 purchased equity of redemption of the mortgaged properties from Radha Kishan:Har Prasad and Pokhi Ram. On August 10, 1950, Girdhari Lal instituted Civil Suit No. 739 of 1950 in the Court of the Senior Subordinate Judge, Ajmer, for enforcing the said two mortgages. In the suit he claimed Rs. 48,919-12-6 as the amount due to him under the said two mortgages. On April 25, 1953, the Senior Subordinate Judge, Ajmer, gave a preliminary decree in the suit for the recovery of a sum of Rs. 34,003-1-6 with proportionate costs and future interest; he disallowed interest from September 14, 1936, to March 13, 1950, on the mortgage of Rs. 25,000. The plaintiff-mortgagee preferred an appeal being Civil Appeal No. 71. of 1953, to the Judicial Commissioner, Ajmer, against the said decree in so far as it disallowed interest to him. The defendants preferred cross objections in respect of that part of the decree awarding costs against them. On July 25, 1953, the defendants filed an application under O.XXXIV, R. 5(1) of the Code of Civil Procedure, seeking permission to deposit the decretal amount in court and praying that possession of the properties may be directed to be delivered to them and also for directing the decree-holder to render accounts of the profits of the mortgaged properties received by him. On July 29, 1953, the respondents deposited Rs. 35,155-2-6 in the Trial Court. On Aug. 17, 1953, the decree-holder filed objections to the said deposit on the ground that it was much less than the decretal amount. On August 27, 1953, the Trial Court made an order permitting the decree-holder to withdraw the said amount with the reservation that the question as to what was due under the decree would be decided later. On Aug. 25, 1954, both the appeal of the decree-holder and the cross-objections of the defendants were dismissed. On Dec. 7, 1954, the defendants filed an application in the Trial Court for the determination of the amount due under the decree and for directing the decree-holder to render accounts of all the realizations from the mortgaged properties. On March 14, 1955, the Supreme Court granted special leave to the decree-holder for preferring an appeal against the judgment of the Judicial Commissioner dismissing Civil Appeal No. 71 of 1953. On February 15, 1956, the Trial Court dismissed the application filed by the defendants for directions on the ground that the mortgage deed had merged in the preliminary decree and that the said decree contained no directions to the plaintiff to render accounts. On February 29, 1956, the defendants applied to the Judicial Commissioner, Ajmer, under S. 152 of the Code of Civil Procedure for amending the preliminary decree by including therein a direction against the plaintiff for rendition of accounts in respect of the profits received by him from the mortgaged properties. On April 12, 1956, the Judicial Commissioner dismissed the said application. On April 25, 1956, the defendants filed a revision petition against the order of the Trial Court dated February 15, 1956, in the Court of the Judicial Commissioner, Ajmer. As by that time the Supreme Court had given special leave to appeal against the decree of the Appellate Court confirming the preliminary decree, the Judicial Commissioner, on August 1, 1956, made an order adjourning the hearing of the revision petition till after the decision of the Supreme Court in Civil Appeal No. 383 of 1956. On February 17, 1957, the decree-holder died, and his legal representatives, who are the appellants herein, were brought on record. On December 16, 1960, this Court delivered judgment in the said appeal modifying the preliminary decree made in the suit and directing the Trial Court to pass a fresh final decree. On April 5, 1961 High Court accepted the revision petition filed by the defendants, remanded the case to the Trial Court and directed it to take an account of the receipts from the mortgaged properties and expenses properly incurred for the management etc., of the said properties as contemplated under S.76(g) and (h) of the Transfer of Property Act and to determine what sum remained to be paid to the mortgagees taking into account the decision of this Court. Hence the present appeal.

(3.) The gist of the arguments of Mr. B. D. Sharma, learned counsel for the appellants may be stated thus:(1) A preliminary decree settles the rights of parties by deciding all the controversies between them relating to a mortgage transaction and gives all necessary directions for carrying into effect those rights, while a final decree concerns itself with the working out of those rights; further, the mortgage merges into the preliminary decree and thereafter no relief can be given on the terms of the mortgage; on the basis of the said two principles it must be held that, as the preliminary decree in the present case did not give a direction to the mortgagee for rendition of an account of the profits of the mortgaged properties, the Court has no jurisdiction to direct such a rendition of accounts on an application filed by the mortgagors after the preliminary decree was made. (2) The High Court went wrong in holding that the appellants were estopped from raising the plea that the mortgagee was not liable to render accounts for the period between the date of the filing of the plaint and that of the preliminary decree. And (3) The High Court should have taken into consideration the equities in favour of the mortgagee.