- (1.) This appeal by special leave arises against the judgment of the Madras High Court in Second Appeal No. 1851 of 1982 dated October 4, 1985. The appellant-plaintiff now becomes puisne mortgagee. The respondent-5th defendant transposes as mortgagor. The facts are many; proceedings are countless and orders are numerous creating bundle of confusions. To clear the cloud and to have clarity, it is necessary, after weeding out the irrelevant, to state the material facts as under: The hypothica belongs to a house known as T. K. M. One Krishnan, the eldest male member of that house, created on October 29, 1947 an usufructuary mortgage in favour of one Laxminarain Pillai and appellant is one of the successors in interest. Krishnan created a second mortgage on Feb. 12,1966 in favour of the appellant with a direction to redeem the first mortgage and to remain in possession for 10 years. On its footing the appellant laid O. S. No. 400 of 1966 for redemption of the mortgage. The trial court while granting preliminary decree directed to deposit into the court on or before May 6, 1970 a sum of Rs. 13,467.15 Paise. The mortgagor and the mortgagee filed first appeals and the appeal of the mortgagor was allowed increasing the appellant's liability and dismissed the appellant's appeal. On January 11, 1972 the appellant filed I. A. No. 58 of 1972 to pass final decree depositing only the amount quantified in the preliminary decree. On Second Appeal by the mortgagor, the decree was modified enhancing the liability. In the meanwhile one T. filed a suit impleading Krishnan, the appellant and all others claiming title to the property. Though the trial court decreed the suit, the High Court allowed the appeals of the appellant, Krishnan and others and set aside the trial court's decree on Feb. 17, 1978. In the meanwhile the appellant got dismissed his I. A. No. 58/72 and withdrew the amount deposited, while the respondent purchased initially the equity of redemption of the mortgages from Krishnan and later on purchased the hypothica by a registered sale deed dated Feb. 1, 1979. Thus she became mortgagor. The appellant filed I. A. No. 549 of 1979 on Feb. 5, 1979 to pass final decree in O. S. No. 400 of 1966 depositing a sum of Rs. 14,947.85 which the respondent resisted inter alia on two main grounds, namely, bar of limitation and non-maintainability. The respondent also filed an independent suit for redemption of the mortgages or alternatively for foreclosure of appellants' redemption suit. The trial court granted final decree which was affirmed on appeal. The High Court without going into the question of limitation, accepted the respondent's contention that appellant is not entitled to file the Second application as he had withdrawn I. A. No. 58/72 unconditionally and without leave of the court and set aside the final decree. It also found that the redemption suit filed by the respondent operates as a bar to the maintainability of the application for final decree.
(2.) Sri Vishwanatha Iyer, appellant's learned senior counsel contended that the approach of the High Court is clearly illegal. Till final decree is passed, the appellant is entitled to deposit the redemption money. No limitation is prescribed to file an application for redemption of usufructuary mortgage. The application is in time from the date of the second appeal. The withdrawal of earlier application is neither a bar for the second application nor of the redemption suit of the respondent. Sri Sampath, the learned counsel for the respondent contended that the trial court fixed the time for depositing the quantified redemption amount; the appellant could file an application for passing the final decree within three years from May 7, 1970. The appellant neither sought time for extension, nor filed it within three years from that date. The appellant, also having withdrawn the first application and the amount unconditionally, without leave of the court, is not entitled to file a second application. The High Court, therefore, is right in dismissing the application. In any event the application is barred by limitation. To resolve the legal tangle, it is necessary to set out the relevant provisions of Order 34, Rules 7 and 8, C.P.C., 1908, which provide thus: 7. "(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 (c) directing - (i) if the plaintiff pays into the 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............... (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-rule (1) or of the amount adjudged due in respect of subsequent cost, charges, expenses and interest.
(3.) Under Rule 8 sub-rule (1) procedure has been provided for passing final decree thus: "(1) Where, before a final decree debarring the plaintiff from all rights 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 this behalf, pass a final decree, or, if such decree has been passed, an order - (a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary - (b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and also if necessary - (c) ordering him to put the plaintiff in possession of the property. Sub-rule (2) is not relevant, hence omitted. Sub-rule (3) provides thus: "(3) Where payment in accordance with sub-rule (1) has not been made, the court shall, on application made by the defendant in this behalf - (a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all rights to redeem the mortgaged property and also if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or (b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same." Order 34, Rule 2 (2), in a suit for foreclosure; Rule 4(2), in a suit for sale and Rule 7(2); in a suit for redemption; provides that the court may on showing good cause, extend time fixed in the preliminary decree, from time to time, upon such terms to be fixed, at any time before the final decree is passed, under Order 34; Rule 3; Rule 5(1) and Rule 8(3) respectively for the payment of the amount found or declared due. The outer limit fixed by these rules for payment of redemption money is the extended time by order of the court in the interregnum or passing the final decree. In Vedapuratti v. Vallabha Valiyaraja, (1902) ILR 25 Madras 300 at p. 307 a Full Bench of five judges held that the right of redemption granted in the preliminary decree subsists till the final decree is made. The right of redemption is only extinguished when an order is made in that behalf (within Sec. 93 of Transfer of Property Act) under the relevant clauses in Order 34. In Motilal v. Thakur Ujagar Singh, AIR 1928 PC 137, the Judicial Committee held that under Order 34, Rule 3(2) suit for foreclosure, the plaintiff has to show sufficient cause for extension of time. In its absence the final decree would follow. In that case neither an application for extention of time fixed in the preliminary decree was sought for nor payment was made. He offered to pay, if the time was extended. Rejecting the request, final decree was passed. In execution an objection was raised and the High Court while holding that no good cause was shown for extension, allowed time for making payment on the prevailing notions of belief by the mortgagors that time could be extended automatically. It was negatived by the Privy Council and the appeal was allowed.;