GYASIRAM KANIRAM VAISH Vs. BRIJ BHUSHANDAS

JUDGEMENT

(1.) THIS appeal arises from proceedings under Order 21, Rule 2 of the Code of Civil procedure, in the following circumstances.

(2.) (a) In 1908, Rajabai executed a mortgage with possession in favour of narayandas for Rs. 9,660/- in respect of the houses situate in Lohia Bazar and dana Oli, Lashkar, Gwalior. (b) On February 18, 1946, Rajabai brought a suit against Brijbhushandas (son and legal representative of Narayandas, who died in the meantime ). During the pendency of the suit, Rajabai died, leaving a will behind, by virtue of which the suit property devolved on Gyasiram appellant and Sitaram, brother of Smt. Vithabai (respondent No. 2 ). Sitaram also died. Smt. Vithabai is his heir and legal representative. (c) On February 30, 1954, a preliminary decree for redemption was passed in the above suit (No. 24 of Samvat 2006) in favour of Gyasiram and Smt. Vithabai. Under this decree, a sum of Rs. 21,354/3/- as principal and Rs. 13,798/11/- as interest and further interest thereon till the date of payment were payable by the mortgagor to the mortgagee within sis months from that date. (d) On March 20, 1959, Gyasiram alone applied for a final decree to be passed in his favour. In that application, he stated that it was on october 16, 1958, that the High Court decided the appeal which had been preferred by the plaintiffs, "and now, therefore, the plaintiffs have to make deposit as per decree. Since Mst. Vithabai plaintiff has no right to deposit the money, so appellant is making the whole deposit, i. e. , "rupees 21,354/3/- as principal and Rs. 13,798/11/- as interest and further interest from 25th May 1946 to 20th March, 1959, being Rupees 7051/7/-, aggregating Rs. 42,204/5/ -. The deposit may he accepted and the defendants be notified and required to deliver possession of the mortgaged property as also all connected deeds. " (e) On March 27, 1959, the trial Court permitted Gyasiram to deposit the amount. It was made clear that the permission did not tantamount to extending the time and the Court reserved its judgment on the question whether the deposit would be within time. Notice was issued to brijbhushandas. On March 28, 1959, Gyasiram deposited Rupees 42,204/5/ -. (f) On April 8, 1959, Brijbhushandas appeared and stated in paragraph 9 of his objections that the amount due under the preliminary decree came to Rs. 46,882/6/6, while the plaintiff had deposited only Rs. 42,204/5/ -. Therefore, Gyasiram could not be permitted to make any deposit. An objection was also taken that the amount deposited by Gyasiram on march 28, 1959, was beyond the time fixed in the decree, so that the court had no power to permit the plaintiff to make the deposit. (g) On April 9, 1959, Gyasiram further deposited a sum of Rs. 4,590/-and prayed that a final decree be passed in his favour, (h) On April 18, 1959, the trial Court held that the deposit had been made beyond the time allowed and directed a final decree for foreclosure to be drawn up. Aggrieved by that order, the appellant preferred an appeal to the District court. The appeal was rejected as being on an insufficient stamp. But the High Court allowed Gyasiram's revision and remanded the appeal to the District Court for decision on the merits. (i) On March 23, 1963, the Additional District Judge allowed Gyasiram's appeal holding that since the amount had been paid before the final decree was passed, it was within time. Reliance was placed on Order 34, rule 8, Civil Procedure Code, in the result, he directed a final decree of redemption to be drawn up in favour of Gyasiram. (j) Before the Additional District Judge, it was contended that the amount which Gyasiram had deposited was still short by Rs. 88/1/ -. Brijbhushandas preferred a second appeal to this Court. This Court took the view that although the amount deposit ed by Gyasiram was within time, yet as there was shortage of Rs. 88/1/-, no final decree could be passed in his favour. The appeal was, therefore, allowed and the order of the trial Court was restored. (k) Gyasiram appealed to the Supreme Court. Their Lordships held that since the shortage was on account of the undertaking given by Gyasiram in the matter of stay, it could not be taken to be a part of the amount due under the preliminary decree. Their Lordships, therefore, held that gyasiram was entitled to a final decree in his favour. Accordingly, their lordships set aside the order of this Court and restored the order of the additional District Judge (Civil Appeal No. 959 of 1964, decided on March 30, 1966 ). Their Lordships said in the judgment:-"

(3.) AGGRIEVED by that order, Gyasiram preferred appeal in the District Court and urged that Smt. Vithabai had no right to enter into the compromise, as the final decree was not in her favour and, secondly, the adjustment could not be certified without notice to Gyasiram. The appeal was dismissed. This is second appeal by gyasiram.