MARIMUTHU MUTHIRIAR Vs. AYYATHURAI

JUDGEMENT

(1.) IN this second appeal by the defendant the question raised is whether the trial court was in order in passing a final decree for redemption without first passing a preliminary decree. The plaintiff executed an usufructuary mortgage as per the original of Ex, A-1, dated 28-8-1871, in favour of the defendant for sum of Rs. 2,000. The plaintiff deposited the sum of Rs. 2,000 in court while filing the suit for redemption. The defendant did not appear to contest the suit. The trial court straightway passed a final decree for redemption following the decision in Roshan Lal v. Bhuri Singh, AIR 1922 All 479. It also fixed the mesne profits at Rs. 61 per month, on payment of the necessary court-fee.

(2.) THE defendant filed an appeal which was heard by the learned Subordinate judge, Tiruchirapalli. He went into the question whether the court can grant a final decree for redemption without granting a preliminary decree and held on the basis of the above said Allahabad decision that it can be done. Therefore, the decree granted by the trial court was confirmed except regarding the question of mesne profits. The first appellate court said that the quantum of mesne profits is to be determined by separate enquiry under O. 20, Rule 12 c. P. C.

(3.) THE defendant has filed the second appeal contending that the courts below are not right in holding that in this case the passing of a preliminary decree can be dispensed with.