Madras High Court
Marimuthu Muthiriar vs Ayyathurai on 9 September, 1977
Equivalent citations: AIR1978MAD246, (1978)1MLJ169, AIR 1978 MADRAS 246, 1991 MADLW 168 (1978) 1 MADLJ169, (1978) 1 MADLJ169
JUDGMENT N.S. Ramaswami, J.
1. In this second appeal by the defendant the question raised is whether the trial court was in order in passing a final decree for redemption without first passing a preliminary decree. The plaintiff executed an usufructuary mortgage as per the original of Ex, A-1, dated 28-8-1871, in favour of the defendant for sum of Rs. 2,000. The plaintiff deposited the sum of Rs. 2,000 in court while filing the suit for redemption. The defendant did not appear to contest the suit. The trial court straightway passed a final decree for redemption following the decision in Roshan Lal v. Bhuri Singh, AIR 1922 All 479. It also fixed the mesne profits at Rs. 61 per month, on payment of the necessary court-fee.
2. The defendant filed an appeal which was heard by the learned Subordinate Judge, Tiruchirapalli. He went into the question whether the court can grant a final decree for redemption without granting a preliminary decree and held on the basis of the above said Allahabad decision that it can be done. Therefore, the decree granted by the trial court was confirmed except regarding the question of mesne profits. The first appellate court said that the quantum of mesne profits is to be determined by separate enquiry under O. 20, Rule 12 C.P.C.
3. The defendant has filed the second appeal contending that the courts below are not right in holding that in this case the passing of a preliminary decree can be dispensed with.
4. Order 34, Rule 7 (1) C.P.C. undoubtedly contemplates the passing, in the first instance, of a preliminary decree in a suit for redemption. The Code says that in such a preliminary decree, the court is to order that an account is to be taken of what was due to the defendant (mortgagee) at the date of such decree for (1) principal and interest on the mortgage; (2) the costs of suit, i| any, awarded to him and (3) other costs, charges and expenses properly incurred by him upto that date in respect of his mortgage security together with interest thereon. That is under Clause (a) of Rule 7 (1).
5. But there is Clause (b) of the said sub-rule which says that the Court can declare the amount due on that date, without giving a direction in the preliminary decree for ascertaining the amount as contemplated under Clause (a). In the present case, the plaintiff-mortgagor has deposited the mortgage amount of Rs. 2,000 even on the date of filing of the suit. The fact that the said amount is being deposited as the amount due to the mortgagee is also mentioned in the plaint. The defendant did not care to appear and contest the suit. Under such circumstances, the question is whether the trial court was wrong in straight-way passing a final decree for redemption as it did.
6. As already seen two alternatives are open in a suit for redemption. One is, the court can give a direction in the preliminary decree for the ascertainment of the mortgage amount. The other is to determine the amount itself without giving a direction as aforesaid. In this case, undoubtedly the trial court should be deemed to have declared the amount due to the mortgagee as contemplated under B. 7 (1) (b) of O. 34 C.P.C.
7. It is contended on behalf of the defendant appellant, that he might not have had any objection for the passing of a preliminary decree for redemption and therefore he allowed the matter to proceed ex parte and had the correct procedure as contemplated in the C.P.C., been followed, the plaintiff would have been obliged to file an application for a final decree in which the defendant would have received a notice and that after such notice, he would have had an opportunity to contend before the court that amounts more than the sum of Rupees 2,000 were due to him. This is hardly acceptable. If Rule 7 (1) stops with saying that the preliminary decree should direct ascertainment of the amount as mentioned in Clause (a) of that rule, the contention may have some force. But as already seen, there is an alternative clause, namely, Clause (b) of Rule 7(1) which contemplates the court declaring the amount due even at that stage without giving any direction for the ascertainment of the amount due to the mortgagee on a later date. That means the defendant should have appeared in court and contested the matter if his case is that he was entitled to more than the sum of Rs. 2,000 deposited by the plaintiff. He, having not done so, it would not be open to him now to say that had the court passed only preliminary decree and gave notice on a final decree application, he would have had the opportunity to put forth his case,
8. The provisions contained in Rules 7, 8 and 9 of O. 34 C.P.C contemplating the passing of preliminary decree first and final decree at a later stage are for the purpose of giving an opportunity to the mortgagor to deposit the mortgage amount due to the mortgagee. But in a case where there was no dispute regarding the amount due to the mortgagee and the mortgagor has in fact deposited the mortgage amount even at the time of filing of the suit, it is not as if the court has no jurisdiction to straightway pass a decree for redemption without passing a preliminary decree and waiting for an application for a final decree to be filed,
9. In the Allahabad case referred above, it has been held that where there is a valid mortgage and a deposit is made in the court by the mortgagor to redeem it, the court is not 'bound to first pass a preliminary decree and then a final decree which means the prolongation of the proceedings, if no injustice will be done to either party by the passing of the final decree at once. Learned counsel for the defendant tried to distinguish this decision, But there is no real distinction on facts between that case and this one, Manicka Chetti v. Kuppuswami Asari, AIR 1926 Mad 644, is a case where a decree was passed for redemption on compromise between the parties. It has been pointed out that it is not absolutely necessary that in every mortgage suit there should be a preliminary decree before a final decree is passed.
10. I have already indicated the facts and circumstances of this case to show that there is nothing wrong in the trial court straightway passing a decree for redemption. The direction given by the first appellate court regarding the ascertainment of mesne profits toy separate enquiry is correct. The second appeal fails and is accordingly dismissed with costs.