ABDUL KARIM Vs. DURGA PRASAD

JUDGEMENT

(1.) The question of law involved in this appeal is, as to whether a mortgagor, who has failed to comply with the terms of a decree in a redemption suit filed by him, is entitled during the continuance of that suit, or before the final decree i n that suit has become incapable of execution, to maintain a second suit for redemption of the same mortgage. The trial Court answered the question in the negative and dismissed the suit. The decree of the trial Court dismissing the plaintiff's suit has been affirmed by the lower appellate Court, though not for the reasons assigned by the trial Court. In my judgment a second suit for redemption is not maintainable during the continuance of a previous suit for redemption of the same mortgage or until the decree in the former suit is in capable of execution.

(2.) By the preliminary decree in a redemption suit, the mortgagor is allowed a period of six months within which he is required to pay the amount declared due, at the date of such decree, to the mortgagee, as a condition precedent to the redemption of the mortgage, and on his failure to do so that decree directs the sale of the mortgaged property. The provisions of Order 34, Rule 8(4), are imperative, and if the payment required to be made by the mortgagor is not made by him within the time allowed by the preliminary decree, the Court is, unless it extends the time for payment, bound under the provisions of Order 34, Rule 8(4), on application by the mortgagee, to pass a decree, that the mortgaged property or a sufficient part thereof be sold and the proceeds of the same be applied in the manner provided for in Sub-clause (4). It follows, therefore, that the failure of the plaintiff in a redemption suit to pay the amount fixed by the preliminary decree within the time allowed by that decree entitles the mortgagee to have a decree in terms of Sub-clause (4) of Rule 8 of Order 34 and this right is vested in the mortgagee by the very terms of the preliminary decree which is binding both on the mortgagor and the mortgagee.

(3.) The mortgagee has, by Art. 181 of the First Schedule to the Limitation Act, a period of three years from the last date fixed by the preliminary decree for the payment of the amount due on the mortgage, to apply for a final decree. If he fails to make such an application within three years, his right to apply for a final decree becomes time-barred, and the redemption suit comes to an end. But during the three years, from the date fixed for payment by the preliminary decree, the suit for redemption continues, and during that period the rights of the mortgagor and the mortgagee are governed by the preliminary decree.