ANGAMMAL Vs. VKMMUHAMMAD SULAIMAN LEBBAI

JUDGEMENT

(1.) A preliminary decree for redemption of a usufructuary mortgage was passed on the 15th October, 1935, and the time fixed for payment was 15 January, 1936. The plaintiff did not deposit the amount on or before that date and did not ask for extension of the time under Order 34, Rule 7(2). She deposited the amount towards the end of 1942 and filed I. A No. 93 of 1943 on the 2nd February, 1943, under Order 34, Rule 8 of the Civil P. C. asking the Court to pass a final decree with a direction to the defendant to deliver the mortgaged property to her. The trial Court dismissed the petition and on appeal the Subordinate Judge confirmed the decree of the trial Court and hence this second appeal.

(2.) The appellant urges that her case is covered by the terms of Order 34, Rule 8 and that it enables her to pay into Court the amounts due from her as fixed under Rule 7(1) of Order 34, at arty time before a final decree debarring the plaintiff frpift all right to redeefn the mbrtgaged property is passed. Order 34 Rule 7 provides In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree- (a) ordering that an account be taken of what was due to the defendant.... (b) declaring the amount so due at that date; and (c) directing (i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken. the defendant shall deliver up. to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property. . . . . and shall also, if necessary, put the plaintiff in possession of theproperty; and (ii) that if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interests, the defendant shall be entitled to apply for a final decree-- (a) in the case, of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be sold, or (b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property. 2. Sub-rule (2) of Rule 7 provides that the Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of the: final decree for foreclosure or, sale, as the case may be, extend the time/fixed for,the payment of the amount found or declared due under Sub-rule (1), or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. Rule 8, Sub-rule (1) provides : Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under Sub-rule (1) of Rule 7, the Court shall, on application made by the plaintiff in ttis behalf, pass a final decree.

(3.) The respondent urges that in the case of a preliminary decree for redemption of a usufructuary mortgage, the only right that the plaintiff may have after the time fixed for payment has expired, is the remedy provided under Rule 7, Sub-rule (2) and that he cannot exercise the right given under Rule 8, Sub-rule (1) Rule 8:(i) give's the right to a mortgagor to pay the amounts due from him under Sub-rule (1) of Rule 7 at any time before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of the; sale held in pursuance of a final decree for salepassed under Rule 8(3)(b). Prima facie even in the case of a usufructuary mortgage, the mortgagor would seem to have a right of paying under Rule 8(1) the amount fixed under Rule 7(1) and ask for consequential reliefs. The argument is that Rule 8(1) fixes as the outer limit the passing of a final decree debarring the plaintiff from all right of redemption or the confirmation of a sale and that as neither is possible in the case of a usufructuary mortgage, Rule 8(1) does not at all apply to usufructuary mortgages. It is said that possibly the mortgagor has a remedy under Rule 7(2),that for getting relief under that rule an application by the mortgagor is necessary, that the application must be" filed within three years from the date when the right to apply accrues under Art. 181 of the Second Schedule of the Limitation Act and that therefore no relief at all can be given to the mortgagor more than three years after the date fixed for payment under Rule 7, Sub-rule (1)., I do hot agree with the view that in the case of a usufructuary mortgage the plaintiff has no right of payment Under Rule 8, Sub-rule (1) for the reason that a usufructuary mortgagee-defendant has no right of applying for a final decree debarring the plaintiff from all right to redeem, the mortgaged property or of bringing the property to sale. The outer limit beyond which payment under rule 8, Sub-rule (i) cannot be made is the passing of a final decree debarring the plaintiff from all right to redeem the mortgaged property or the confirmation of a.sale held under Rule 8(3). In a case of mortgage by,conditional sale, or Other cases where a foreclosure decree of; this;kindis.-possib,lef this limit will be reached when the mortgagee applies and gets a decree debarring the mortgagor of all right of redemption. In a case where a sale is possible, the outer limit is reached when the sale held in pursuance of Rule 8, Sub-rule (3)(b) is confirmed. This does not, in my opinion, mean that in the case of a usufructuary mortgage, no payment can be made except under Rule 7(2) for the reason that neither foreclosure nor sale is possible. If for the reason that Rule 8(1) provides that payment may be made before a final foreclosure order is passed or a sale confirmed the rule is not to apply to usufructuary mortgages, the same reason should lead to the conclusion that Rule 7(2) also should not apply to usufructuary mortgages. Rule 7(2) says this : The Court may 1 - at any time before the passing of a final decree for foreclosure or sale as the case may be, extend the time fixed for payment of the amount found or declared due under Sub-rule (1) .