(1.) This appeal is by the 3rd defendant against the final decree in a suit in redemption of a possessory mortgage. It is regrettable to note that the decrees preliminary and final in the case are not in accord with the provisions of R.7 and 8 of O.34 CPC.
(2.) R.7 reads thus:
7. Preliminary decree in redemption suit.-- (1) 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 at the date of such decree for --
(i) principal and interest on the mortgage,
(ii) the costs of suit if any, awarded to him and,
(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage security, together with interest thereon; or
(b) declaring the amount so due at that date; and
(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 under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in R.10 together with subsequent interest on such sums respectively as provided in R.11, the defendants 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, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property; 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 sate, or an anomalous mortgage the terms of which provide for foreclosure only and not for safe, 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) 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 a 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-r.(1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. " italics by me.)
(3.) This Rule relates to preliminary decrees in redemption suits. It provides that the preliminary decree should concern
(i) the amount due to the defendant on its date,
(ii) time within which the plaintiff has to pay the price of redemption to the defendant,
(iii) further amounts becoming due to the defendant since the date of the preliminary decree up to the date of payment thereof,
(iv) the consequences that may follow the plaintiff's payment, and
(v) a direction that if plaintiff defaults payment the defendant may apply for a final decree in the suit.
The amount due to the defendant on the date of the preliminary decree may comprise the 3 counts mentioned in clause (1) (a), namely
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and,
(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage security, together with interest thereon.
The last of the above counts would include compensation, if any, payable to the defendant under the Kerala Compensation for Tenants Improvements Act, 1958 (Act XXIX of 1958). The amount may be ascertained and declared in the preliminary decree itself [vide clause (1)(b)] or an account thereof may be ordered be taken [vide clause (1) (a)]. In the latter case when an account of the amount due to the defendant at the date of the preliminary decree is ordered to be taken such account has to be taken under the preliminary decree; and the accounts as finalised should be "confirmed and countersigned" by the Munsiff (or the Judge as the case may be). The expression in clause (1)(c)(ii) "the amount found or declared due under or by the preliminary decree" covers the amount assessed either way. it is not only expedient but proper and even necessary that when accounts are settled after date of the preliminary decree it must be made an appendage to the preliminary decree.
The time fixed for payment should not exceed six months [vide clause (1)(c)(i)]; but the Court may extend the time afterwards [vide clause (2)]. The time thus allowed for payment should be
(i) from the date of the preliminary decree, when the amount due on its date is declared in the preliminary decree itself, and
(ii) from the date of confirmation and counter signature of the accounts settled between the parties, when such accounts are ordered to be taken by and after the preliminary decree.
It may often be that subsequent to the date of the preliminary decree, the defendant may have lawfully incurred costs, charges and expenses in respect of the mortgage security and that on some of such amounts he may claim interest too (vide R.10 and 11 of O.34 CPC. and S.72. T. P. Act). These would include compensation payable under S.5(3) of the abovesaid Act XXIX of 1958. [In relation to a redemption decree, the term ''decree" in S.5(3) of the Act XXIX of 1958, as also that in the opening words of R.11 of O.34, can only mean a preliminary decree]. The ascertainment of the amount under this court can be made only at the time of passing a final decree or an order for delivery of the mortgage deed and, if required, the mortgaged property after the plaintiff has deposited the amount declared due to the defendant on date of the preliminary decree as mentioned in Para.3A above.
The consequences of plaintiff's payment into Court of the amounts, firstly as declared as on the date of the preliminary decree and thereafter of the subsequent costs, charges and expenses as are mentioned in the last preceding paragraph, are detailed in clause (1)(c)(i) of the Rule. The plaintiff may apply for a final decree for the delivery of the mortgage deed and also, if required, for delivery of the mortgaged property and for execution of a release deed in his favour.
The consequence of the plaintiff's default to pay such amounts is provided in clause (1)(c)(ii) as that the defendant may then apply for a final decree for sale or for foreclosure as the case may be.