SHANKARLAL Vs. KALYAN

JUDGEMENT

(1.) The plaintiff filed a suit for redemption of a mortgage of an open plot writ-a temporary structure standing thereon alleged to have been mortgaged with Kesrima for an amount of Rs.500.00 on 15-11-1958 Kesrimal was the father of Kalyan, the defendant, The defendant entered appearance and submitted his written statement contending that the property was never mortgaged but it was a sale out and out for the amount of Rs 1200.00. Both the courts on appreciation of the evidence on record, have reached to the conclusion that the property was mortgaged and passed the decree for redemption of mortgage. After the decree for redemption is passed, the decree was got executed by the plaintiff and the possession of the property was taken after depositing decretal amount. The present appeal has been filed by the defendant.

(2.) It is contended by the counsel for the appellant that in a suit for redemption, it is necessary for the court to pass a preliminary decree before a final decree is passed as provided by Order 34 Rule 7, C.P.C.

(3.) It is true that when the interest is granted by the court or where it is required to be returned back the documents of mortgage, the court has to pass a preliminary decree and there is no escape from passing a preliminary decree by the court before a final decree is granted. However, passing of a final decree without passing of a preliminary decree preceding it would not render the preliminary decree null and void and incapable of execution when it has been allowed to become final by the execution. If the right of the party was permitted to become final by execution of the decree then not passing of a preliminary decree will not make the final decree null and void. In the present case, there is no decree granted by the courts below for the payment of the interest or for return of the mortgage deeds to the plaintiff-respondents. Thus, there was no necessity of including the terms in the preliminary decree, which is a requirement under Order 34, Rule 7, C.P.C. The counsel for the appellant has cited two authorities : (i) AIR 1989 MP 122, and (ii) AIR 1966 SC 902 for the proposition that in a suit of redemption, the court has to pass a preliminary decree. The lads in those cases are distinguishable and not applicable to the facts of the present case, that the terms on which the decree was passed necessitated passing of a preliminary decree, which is not the case here. The provisions of Order 34, Rules 7,8 and 9 are for the purpose of giving opportunity to the mortgagor to deposit the mortgage amount due to the mortgagee but when the amount is already deposited, possession delivered, then simply because preliminary decree was not passed, the final decree which was already executed, will not be vitiated. The non-passing of the preliminary decree does not pre-judicially affect the rights of the parties.