SUMITRA DEVI Vs. NANDAN PRASAD SINGH CHAUDHARY

JUDGEMENT

(1.) This second appeal by the defendants arises out of a suit filed by the plaintiff-respondents seeking preliminary decree for foreclosure and for declaration that the appellants were debarred from all rights to redeem the property in suit, which was the subject matter of the deed of mortgage by conditional sale. The trial court decreed the suit ex parte by its judgment dated 23rd Sept., 1966, giving three months' time to the appellants to deposit the entire decretal dues. It was also stated therein that in case the amount as indicated above was not paid within three months, then the plaintiff-respondents shall be at liberty to get the defendants foreclosed and debarred from all rights to redeem the Baiulwafa deed and obtain final decree therefor. A preliminary decree in terms of the judgment was drawn which was sealed and signed on 6th Oct., 1966. Since the defendant-appellants did not deposit the decretal amount within three months, a petition for preparation of final decree was filed on 28-4-1967. Thereafter, the appellants on 9-8-1967 filed an application, inter alia, stating for fixing instalments to enable them to pay the decretal amount. Curiously no order was passed on this application which remained pending until 25th Sept., 1972, when the appellants deposited the entire decretal amount in court The respondents objected to this deposit and contended that since the deposit was made beyond the period of three months as directed by the judgment and decree dated 23-9-1966, the same could not be said to be valid. They accordingly prayed that a final decree for foreclosure should be passed. The appellants, on the other hand, contended that the period of three months as given by the decree dated 23-9-1966 could be extended under Order 34, Rule 3 of the Code of Civil Procedure at any time before the final decree was drawn. They, therefore, prayed that a decree asking the plaintiff-respondents to hand over the Baiulwafa deed and possession of the property in question to them be passed. The trial court, after hearing the parties, held that the court could extend the period of three months under Order 34. Rule 3 of the Civil P. C. It accordingly passed a final decree directing the respondents to, deliver the mortgage deed and other documents relating to the suit property, if any, to the appellants. It also directed the respondents to put the appellants in possession of the mortgaged property within one month from the date of the order, failing which possession should be delivered to the appellants at the cost of the respondents through the process of court. Aggrieved by the decree passed in favour of the appellants, the respondents carried the matter in appeal to the District Judge, Patna. The appeal came up for hearing before the Additional Subordinate Judge, 3rd Court, Patna, in whose opinion, the trial court erred both in law and on fact in extending the period under Order 34. R. 3 of the Civil P. C, for deposit of the decretal amount. The learned Subordinate Judge was also of the view that the deposits made were only those indicated in the judgment and decree dated 6-10-1966 and did not include subsequent costs, charges, expenses and interest. He accordingly held that the appellants have no right to redeem the mortgaged property. The appeal was therefore, allowed and a direction for preparation of final decree for foreclosure was made. The defendants have now come to this Court in second appeal.

(2.) Mr. Rama Kant Verma, learned counsel for the appellants in support of the appeal urged that the view taken by the court of appeal below was erroneous. He contended that under the preliminary decree the appellants were given three months' time to pay the decretal amount. According to him, this did not mean that time to deposit the decretal amount could not be extended under Rule 3 (of) Order 34 of the Civil P.C. in case final decree for foreclosure was not passed. According to learned counsel, the mention of 'three months' in the decree only meant that before the expiry of this period, the plaintiffs were not entitled to make an application for preparation of final decree but that did not mean that deposit under R. 3 of Order 34 of the Civil P. C. could not be accepted. Mr. Guneshwar Prasad, learned counsel for the plaintiff-respondents, on the other hand, contended that after the expiry of the time mentioned in the preliminary decree, courts have no jurisdiction to extend the time under R. 3 of Order 34 of the Civil P. C. According to him, extension of time, if at all, could be given under Order 34, Sub-rule (2) of R. 2 of the Civil P. C., which, in this case, was not done. He, therefore, urged that the court of appeal below was right in refusing a decree for redemption in favour of the appellants. The only course available to the court below, according to learned counsel for the respondents, was to direct preparation of final decree for foreclosure.

(3.) Before I proceed to examine the respective contentions advanced on behalf of the parties it will be useful to refer in brief to the changes and amendments made from time to time with respect to suits for foreclosure. Originally such suits were controlled by Section 86 of the Transfer of Property Act, 1882. According to that section, the court in case of plaintiff's success had to pass a decree directing that an account be taken of what shall be due to the plaintiff for principal and interest on the mortgage and for his cost of the suit, if any awarded to him on the day fixed by it or declaring the amount so due at the date of the decree. It also provided that the court had to give an opportunity to the defendant to pay the amount so found due on a day within six months fixed by it. In case the amount so fixed was paid then, according to the decree, the plaintiff had to deliver to the defendant all documents in his possession and transfer the property to the defendant free from all encumbrances created by the plaintiff or any person under him and had also to put the defendant in possession of the property if necessary but according to the aforesaid section the decree had to provide that in case payment was not made on or before the day which was fixed by the court then the defendant was to be absolutely debarred of all rights to redeem the property. It is significant to note that under Section 86 of the T. P. Act. there was no discretion in the court to allow the defendant more than six months' time to pay to the plaintiff the amount found due. The defendant also could not move the court for extending the period to make payment once fixed by the court. Ss. 85 to 90 of the T. F. Act relating to suits for foreclosure, sale or redemption were, however, repealed (by the Code of Civil Procedure, 1908 (Act 5 of 1908), Section 156 and Schedule V) and the law relating to suits for foreclosure was mentioned in Order 34, Rules 2 and 3 of the Civil P. C. Rule 2 of Order 34 of the Civil P. C. provided that in case the plaintiff succeeded then the court had to Dass a preliminary decree ordering an account to be taken of what would be due to the plaintiff for principal and ' interest on the mortgage and for his cost and directing the defendant to pay into court the amount so due on a day with-in six months from the date of declaring in court the amount so due. In case such payment was made then the plaintiff, according to the decree that had to be passed under the rule, had to deliver to the defendant all documents in his possession or power relating to the mortgaged property and also if so required had to retransfer the property to the defendant free, from the mortgage and from all encumbrances created by him or any person claiming under him. But in case payment as stated earlier was not made on or before the date so fixed by the court then the defendant was debarred from all rights to redeem the property. Then Rule 3 of Order 34 of the Civil p. C. provided that in case the defendant made deposit as directed in the preliminary decree then the court will pass a final decree for redemption directing the plaintiff to hand over all documents relating to the mortgaged property to the defendant and also re-transfer the mortgaged property to the defendant at his own costs free from all encumbrances created by him. According to Sub-rule (2) of Rule 3, however, in case payment as directed by the preliminary decree was not made within the time allowed then a final decree debarring the defendant from all rights to redeem the mortgaged property had to be passed. But according to the proviso to this Sub-rule, the court was given a discretion to postpone the date fixed for such payment from time to time upon good cause being shown. That means a provision was introduced in the year 1908 empowering the court to extend the time to make deposit beyond six months on sufficient cause being shown. Rules 2 and 3 of Order 34 of the Civil P. C. were again amended in the year 1929. The appeal has to be decided according to the rules that exist after this amendment. It is, therefore, necessary to keep in mind the provision of Order 34, Rules 2 and 3 of the Civil P. C. as they exist today. Sub-rule (1) of Rule 2 provides for passing of a preliminary decree in a suit for foreclosure. It, inter alia, says that after determining the amount payable under the mortgage, the court should fix a period not exceeding six months within which time the defendant should make payment of the amount together with subsequent interest. It further provides that in case such payment is made then the plaintiff should deliver all documents in his possession relating to the mortgaged property and should also retransfer the property to the defendant at his cost free from the mortgage. In case, however, the payment as aforesaid is not made then the plaintiff-mortgagee becomes entitled to apply for a final decree debarring the defendant from all rights to redeem property. Sub-rule (2) of this rule then provides that on good cause being shown and upon terms to be fixed, the court may from time to time at any time before passing of a final decree extend the period fixed for payment of the amount under Sub-rule (1) Rule 3 provides for preparation of final decree. According to Sub-rule (1) of this rule, if the defendant makes payment into the court of all amount due from him under Sub-rule (1) of Rule 2 before a final decree debarring the defendant from all rights to redeem the mortgaged property is passed then an obligation is cast upon the court to pass a final decree directing the plaintiff to deliver un the document referred to in the preliminary decree and, if necessary, ordering him to retransfer at the cost of the defendant the mortgaged property and also ordering him to put the defendant in possession of the property. Sub-rule (2) provides that if payment in accordance with Sub-rule (1) is not made then on an application made by the plaintiff, the court shall pass a final decree debarring the defendant from all rights to redeem the mortgaged property. If necessary, the court shall also order the defendant to put the plaintiff in possession of the property.