Rajasthan High Court - Jaipur
Virendrapal Singh vs Lalit Kumar And Anr. on 5 February, 1992
Equivalent citations: 1992WLN(UC)27
JUDGMENT N.K. Jain, J.
1. This defendant's second appeal is directed against the judgment and decree dt. 13.11.91 passed by the learned Additional Civil Judge No. 3, Udaipur whereby he has affirmed the judgment and decree dt. 22.9.1989 of learned Munsif and Judicial Magistrate, Udaipur in civil original suit No. 71/92.
2. The facts in brief are that the suit property (described in para 1 of the plaint) was mortgaged by one Mst. Umari W/o Deen Mohammed for Rs. 200/- on 13.7.1940 with Yar Mohammed defendant No. 2. She executed a will in favour of mortgage Yar Mohammed on 30.6.45. Yar Mohammed is his turn executed mortgage deed in favour of Virendra Pal Singh, the appellant. Yar Mohammad sold this house to the plaintiff-respondent Lalit Kumar and Basant Kumar. The plaintiff-respondent after serving a notice filed a suit for redemption on 24.9.1966. In the written statement the defendant appellant has denied the claim and stated that the real owner of the house was one Sepoy Abdul Rehman who by a sale deed dated 30.11.1989 sold the house to Mst. Bennizan and after her death Mst. Mehkoobzan became the owner of the disputed house, who mortgaged the house on 24.12.1925 with one Syed Mohammad Asad All and who in their turn mortgaged this house with Deen Mohammed on 13.7.1926, the husband of Mst. Umari for Rs. 199/-. The defendant-appellant denied existence of any will in favour of Yar Mohammad and stated that the so-called will is forged one. The defendant No. 2 Yar Mohammed supported the case of the plaintiffs. On the pleadings of the parties, the learned trial court framed as many as eight issues and the defendant examined nine witnesses including himself and several documents were produced. It is pertinent to note that Yar Mohammed died and the suit proceeded without his L.Rs. being substituted. The plaintiff examined two witnesses and 8 documents. The learned trial court decreed the suit on 13.12.1971 and passed a preliminary decree directing the plaintiff to pay Rs. 200/- as mortgage money and Rs. 2300/- the money spent by the appellant for improvement of the said mortgaged property and it was further directed that if the plaintiff fails to deposit this amount within one month, the suit shall stand dismissed. Both the parties went in appeal against the judgment and decree of the learned trial court dt. 13.12.71. The learned Appellate Court dismissed the appeal filed by the appellant and accepted the appeal of the plaintiff but reduced the decreetal amount from Rs. 2300/- to Rs. 1800/- and directed the plaintiff to deposit this amount within one month. The appellant filed a second appeal No. 691/79 Virendra Pal Singh v. Basant Kumar in this Court and obtained an adinterim order on 6.1.75 and the same was modified by this Court on 11.8.76. This second appeal was dismissed on 8.6.86. The plaintiff tendered the amount in the learned trial court and prayed that the final decree may be passed of the mortgaged property. Notice was issued to the appellant of this application and reply was filed by him and after hearing both the parties, the learned trial court in pursuance of the decree dt. 22.10.1974 passed a final decree on 22.9.89. Being aggrieved, the appellant has filed appeal which was also dismissed on 13.11.91. Hence, this second appeal.
3. I have heard learned Counsel for the parties and perused the impugned orders. The only contention of Mr. R.P. Dave, learned Counsel for the appellant is that the plaintiff-respondent has no subsisting right of redemption as he has failed to deposit the amount as directed by the learned trial court, so the suit deserves to be dismissed. He has placed reliance on Sullah Singh and Ors. v. Sohanlal and Anr. , Tikamchand Sharma v. Ramped and Ors. I.L.R. 1965 Raj.-213 and Sited Prshad and Anr. v. Kishorilal . On the other hand Mr. Bhagwati Prasad, learned Counsel for the plaintiff-respondent has supported the judgment of the learned courts below and placed reliance on Prakash Chandra v. Gumanmai 1970 R.L.W. 326.
4. In Sullah Singh v. Sohanlal it was held "that the direction given by the trial court are mandatory under the provisions contained in Order 20 Rule 14 C.P.C. Mere filing of an appeal does not suspend the decree of the trial court and unless that decree is altered in any manner by the court of appeal. In above case trial court granted a preemption decree and certain directions were also given in the decree. An appeal was filed against the trial court's decree, but no stay order was granted by the appellate court and the plaintiff did not deposit the pre-emption amount as directed by the trial court. Then it was held by the Supreme Court that the appellate court should not have extended, the time and the suit should have been dismissed as the plaintiff has not deposited the amount as per terms of the trial court's decree.
5. In Tikamchand Sharma v. Rampal I.L.R. 1965 Raj. 213 the admitted case of the parties was that the suit property was mortgaged with possession on 29.8.1914 with the plaintiff along with defendants No. 5 to 7. There was an appeal from the final decree in a suit of redemption. A preliminary decree was passed on 10.12.49 and final decree was passed on 14.12.1954. In the final decree, the plaintiff was called upon to pay the amount and adjudged by the court on or before 14th June, 1954 or later date which might be extended by the court for that purpose. There was a further direction in the final decree that if the amount was not paid within time originally fixed or extended, the suit would stand dismissed with costs. The plaintiff failed to deposit within time fixed by the trial court, then it was argued in the High Court that there is no subsisting decree on the date of hearing of the appeal. In such circumstances. The learned Judge while dismissing the appeal observed that though we are by no means happy to arrive at the result at which we have, we feel constrained to observe that there is no other conclusion to which we can possibly come in the circumstances of the case particularly as no objection whatever was raised on behalf of the appellant as' to this particular clause his grounds of appeal filed in this Court.
6. In Sital Parshad and Anr. v. Kishorilal the respondent obtained a preliminary decree in a mortgage suit by sale of mortgaged property. As the preliminary decree did not allow interest to the respondent from the date of the suit to the date of preliminary decree. The respondent filed an appeal in the High Court. As there was no stay order passed by the High Court, the respondent apply for making the preliminary decree a final decree and the court passed the final decree pending the appeal from preliminary decree, and the respondent took out execution of final decree. While the execution was pending, the High Court allowed the Respondents second appeal and allowed interest. An objection Under Section 47 C.P.C. was filed in the execution that decree is not executable as no fresh final decree has been passed and execution not filed within three years of judgment of High Court. The trial court rejected the contention of the appellant. The appellant filed an appeal and letters patent appeal to the High Court and the same were dismissed. The Supreme Court considered the effect of preliminary decree and final decree in mortgage suits and observed that in a case where an appeal from the preliminary decree is dismissed and the preliminary decree is confirmed in to it does not follow that the period of payment allowed in the trial court's decree is extended automatically even though a final decree has been passed in the meantime. It seems to us that it is the duty of the appellate court to indicate when dismissing the appeal from a preliminary decree in toto whether the time for payment is to be extended and if it does not do so, the original time granted for the purpose must stand. Their Lordships dismissed the appeal.
7. In Prakash Chandra v. Gumanmal R.L.W. 1970-326 a mortgage suit was filed and it was alleged that mortgage has transferred his right title and interest in the mortgaged property in favour of Tikam Chandra by a registered document. The trial court passed a decree for redemption as a preliminary decree, in favour of the plaintiff and directed the plaintiff to pay a sum of Rs. 7686.94 paise by plaintiff to defendants within a period of one month and further ordered the if plaintiffs did not pay the said amount within one month or extended time, the plaintiffs suit shall stand dismissed. An appeal was filed by the appellant and cross objection by defendant for pendente lite interest and future interest. The appellate Court dismissed plaintiffs appeal and allowed defendant's cross-objection and allowed interest. The rest of the decree of the trial court was maintained. The plaintiff filed a second appeal. A preliminary objection was raised by the counsel for the respondent that appeal is not maintainable and the plaintiffs suit for redemption should have been dismissed as he has not complied with the terms of the trial court's decree i.e. he has not deposited within time allowed by the trial court. Under the circumstances of the case, the learned Judge observed that "I find it difficult to accept this contention inasmuch as in older that a direction may operate interrorem against the litigant, it is highly necessary that such a direction must be specific terms. To say that the first appellate court fixed a period of four months for the deposit of the amount from the date of its judgment would tentamount to reading much more than what is contained in the judgment." It must be remembered that the decree of the trial court was confirmed by the appellate court with a variation. In these circumstances, it is the decree of the first appellate court which will be material for the purpose of adjudging whether any direction there in the nature of the penal clause or interrorem so that laches or delay on the part of the plaintiff may result in the dismissal of the suit. If the decree of the trial court had not been varied and had been confirmed as it is by the first appellate court and the operation of the trial court's decree had not been stayed by the first appellate court, there may have been some force in the contention.
8. In the present case the trial court while passing preliminary decree granted one month's time to deposit the amount. Both the parties went in appeal and obtained stay. Against the first appellate court. But later on dismissed the appeal filed by the appellant and accepted the appeal filed by the plaintiff and granted one month's time. A second appeal was filed in this Court and adinterim stay order was granted by this Court on 6.1.75. The amount was reduced by the first appellate court from Rs. 2300/- to Rs. 1800/- and the same was maintained by the High Court vide its order dt. 8.8.86. Therefore, stay order was operative by the first appellate court as well as the High Court. In such circumstances the decree passed by the learned trial court was varied by first appellate court i.e. in other words the decree passed by the trial court merged in the decree passed by the first appellate court and which was only executable and not of the trial court. The cases cited above by the learned Counsel for the appellant are not applicable as in those cases there was no stay order whereas in the case in hand as stated above there was stay order, therefore, it does not lie in the mouth of the appellant to say that the decree passed by the learned trial court is not a subsisting decree and the plaintiffs suit should have been dismissed as he failed to deposit the redemption amount as per direction given by the trial court in its decree. Learned Counsel for the appellant has not been able to show any case law on this point. As observed above that had there been only appeal without stay order by the appellate court, then the case law referred by the learned Counsel for the appellant would have been applicable and not otherwise. In Prakash Chandra's case (Supra) the same view has been expressed that where there is appeal and stay then the judgment of the appellate court shall be final.
9. No other point has been prassed before me. Under the facts and circumstances of this case, the appeal has no force and the judgment and decree passed by the learned courts below is maintained.
10. In the result, this second appeal has no force, so it is hereby dismissed with no order as to costs.