Judgment :- 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 Order XXXIV CPC. 2. R.7 reads thus: 7. Judgment :- 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 Order XXXIV 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 (c) directing (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, re-transfer 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-rule (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. 3A. 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. 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. 3B. 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. 3C. 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 Order XXXIV 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 Order XXXIV, 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. 3D. 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. 3E. 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. 3E. 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. 4. R.8 of Order XXXIV CPC. relates to final decrees in redemption suits. It reads thus: "8. Final decree in redemption-suit. (1) Where, before a final decree debarring the plaintiff from all right 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 R.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. (2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sura equal to five per cent thereof. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sura equal to five per cent thereof. (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 R.7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right 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." 4A. Under this Rule, a final decree in a redemption suit may be passed on the application of the plaintiff or on the application of the defendant. Clause (1) relates to the former category and clause (3) to the latter. Thus: A final decree may be passed on the application of the plaintiff if, before a final decree is passed on the application of the defendant, he has paid into Court all the amounts due to the defendant and such final decree shall direct the defendant to deliver up the documents concerned and, if so required, to execute a release deed and to deliver possession of the mortgage property. An order in similar terms (but not a final decree) may also be passed (i) when a final decree for sale has been passed on the application of the defendant but no sale has taken place in pursuance thereto if the plaintiff has paid all amounts due to the defendant into Court inclusive of his expenses for final decree proceedings, and (ii) when a final decree for sale has been passed on the application of the defendant and court-sale has taken place in pursuance thereto but the sale has not been confirmed if the plaintiff has paid into Court all amounts payable to the defendant as also 5% of the price fetched by the sale. But no such order can be passed if the court-sale has been confirmed; and neither a final decree nor an order of the kind mentioned above can be passed if the final decree obtained by the defendant is for foreclosure. 4B. A final decree may be passed on the application of the defendant (i) if the plaintiff defaulted payment of the amount declared due by him by or under the preliminary decree, or (ii) after the abovesaid amount has been paid, if the amount subsequently found payable for costs, charges and expenses properly incurred since the date of the preliminary decree is not paid, and such final decree shall be for sale of the mortgaged property or for foreclosure of the mortgage, as the case may be. 5. From the above, it is clear that a direction in a preliminary decree-for-redemption that compensation for improvements due to the mortgagee may be ascertained or assessed in final decree proceedings or at execution is not in accordance with the R.7 and 8 of Order XXXIV CPC, and is for that reason not warranted by law. 6. In the present case the Munsiff has by his preliminary decree found the plaintiff to have the right to redeem and directed the defendant to apply for a commission within 14 days to assess the value of his improvements on the land to be adjudged by the final decree, and passed a final decree negativing the defendant's right to such compensation as he failed to move for appointment of a commission within 14 days of the preliminary decree. The District Judge has affirmed him. The District Judge has affirmed him. As I have found the so-called final decree in this case not to be a final decree as contemplated by the law, it is set aside and the Munsiff is directed to pass decrees or orders in the case in accordance with the law as provided in Order XXXIV CPC. In the circumstances of the case the parties may suffer their costs of this appeal. Allowed.