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1991 DIGILAW 148 (HP)

KODU RAM v. AMRITI DEVI

1991-10-24

V.K.MEHROTRA

body1991
JUDGMENT V. K. Mehrotra, J.—This is a revision petition under section 115, C. P. C. 2. In Civil Suit No. 19 of 1969 instituted by one Shri Rania Ram whose heirs are the respondents in this Court except for the 7th respondent who is a proforma respondent, a preliminary decree was passed by the trial Court on November 26, 1977 in a mortgage suit against applicant Kodu Ram who is sole defendant. The decree provided that the plaintiff would be entitled to redeem the mortgaged land on deposit of a sum of Ks. 533.34 within one month of the passing of the decree. An amount of Rs. 534 was deposited by the decree-holder on December 24, 1973, that is, within the aforesaid period of one month of the passing of the preliminary decree. Thereafter, the decree-holder applied for the preparation of the final decree. An order was passed by the learned Senior Sub-Judge, Kangra, at Dharamshala on August 7, 1976 saying that the Counsel for the respondent (defendant-judgment-debtor) did not oppose the application subject to the objection with regard to the deposit of the redemption money within limitation. The learned Judge found that the amount had been deposited within the period allowed to the decree-holder and said in his order? "......That being so the applicant-plaintiff is entitled to a final decree as prayed for. It is accordingly ordered that the final decree as prayed for be prepared and the file be consigned to the record-room after completion." 3. On March 6, 1987 the decree-holder filed an execution petition (No. 31 of 1987). the basic objections which were taken on behalf of the judgment-debtor were that the execution petition had been filed beyond the prescribed period of limitation of .12 years under Article 136 of the Limitation Act, inasmuch as the preliminary decree passed on November 26,1973 was the executable decree and that the decree could not be executed also for the reason that the property involved in the suit had been compulsorily acquired by the State Government for the Pong Dam and had vested in it free from any encumbrances when the State Government-took possession thereof These objections were rejected by the learned Senior Sub-Judge, Kangra, at Dharamshala on May )1, 1991. Against that order the present revision has been filed by the judgment-debtor. 4. Against that order the present revision has been filed by the judgment-debtor. 4. Order XXXIV dealing with suits relating to mortgages of immovable property provides for a preliminary decree in a redumption suit in Rule 7. Rule 8 then provides for a final decree. In its relevant part this Rule says that: "8(1) Where, before a final decree-debarring the plaintiff from all right to redeem the mortgaged property has been passed............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.......... And, also, if necessary— (c) ordering him to put the plaintiff in possession of the property. (2).......................... (3) ........................" 5. It is obvious that law requires the preparation of a final decree in a redumption suit in the circumstances envisaged in Order XXXIV, C. P. C. 6. The decree, which can be executed, in a suit of this nature would be the final decree. The period of twelve years envisaged in Article 136 of the Schedule (o the Limitation Act, 1963 would, in such a suit, start running from the date of the preparation of the final decree. The view of the learned Senior Sub-Judge to that effect is in consonance with law. 7. The two issues which had been framed by the learned Senior Sub-Judge, relating to the availability of the property for execution of the decree in quesion, were Issue Nos. 3 and 4 which were: "3. Whether the lands have been compulsorily acquired for Pong Dam? If so, its effect? O P. Objector. 4. Whether houses mentioned in the decree do not exist on the spot? If so, its effect? O. P. Objector." 8. Both these issues were considered together by the learned Judge. On consideration of the evidence produced before him the learned Judge come to the conclusion that t "...In view of the aforesaid oral and documentary evidence, I hold that all the land under execution has not at all been acquired by Central Government and only three Khasra Nos i.e. 50,220 and 230 have been acquired and therefore, decree-holders are entitled to the possession of Khasra No 187 measuring 2.14 Kanals and also 2/3rd of the house in Abadi Gair Mumkin Khasra No. 193 as per the site plan attached with the decree-sheet......" 9. On this finding it is obvious that the objection that the decree had become in executable in its entirety on account of the property having been compulsorily acquired and possession thereof having been taken by the Central Government for purposes of the Pong Darn could not have been upheld in its entirety. The objection has been upheld by the learned Senior Sub-Judge partly in so far as it related to Khasra Nos. 50,220 and 230. 10. The two decisions in Sri Chandra Mouli Deva appellant v. Kumar Binoya Nand Singh and others, AIR 1976 Pat 208 and Amar Math and others, appellants, v Mul Raj (deceased) represented by his L.R.s and others, respondents, AIR 1975 P & H 240, cited before the learned Senior Sub-Judge on behalf of the judgment-debtor do not relate to a decree in a mortgage suit. Similar is the position in respect of the decisions cited before this Court by Shri R K. Sharma, appearing for the applicant. He has placed reliance on Lai Bhagwat Singh v. Hari Kishen Dass, AIR 1942 Oudh 1 : Venkata Reddy and others v. Pethi Reddy, AIR 1963 SC 992 ; A. Thakurdas and another v. A.Venilal and others, AIR 1977 Knt 60 and Srinibas Jena and others v. Janardan Jena and others, AIR 1981 Orissa 1, (FB). 11. In Gopi Kanta Bhuiya v. Kalikanta Bhattachariya and others, AIR 1950 Assam 59, upon which also reliance was placed by Shri Sharma, the situation was entirely different. On the facts of the case the Court had found that after a decree for redemption, the judgment-debtors voluntarily complied with the decree so that, in the words of the learned Judges of the Assam High Court; "......The result was that no necessity was left for a final decree in the case. The mortgage stood redeemed............... The absence of a formal final decree does not affect the validity of redemption by act of parties on which the Court has set its seal of approval........." Eeven otherwise, the question which was being considered was in respect of competing rights of two mortgagees. 12. Shri N. K. Sood, appearing on behalf of the learned Counsel for the decree-holders-respondents, has brought to the notice of the Court a decision given by Karnataka High Court in Y. Chandrashekara Hegde, appellants Omayya Shetty respondent, AIR 1978 Knt 29. 12. Shri N. K. Sood, appearing on behalf of the learned Counsel for the decree-holders-respondents, has brought to the notice of the Court a decision given by Karnataka High Court in Y. Chandrashekara Hegde, appellants Omayya Shetty respondent, AIR 1978 Knt 29. In that case the question of an execution petition having been filed within the prescribed period of limitation in a redemption suit had come up for consideration before the High Court. What was found, on facts, was that the application for execution had been made within the prescribed period of three years under Article 182(2) of the Limitation Act 1908, on July 13, 1960 as the time to file it commenced to run from August 31, 1959, the date on which the miscellaneous appeal (M) 9/1956 had been disposed of. This finding was based on a conclusion recorded by the court that the Miscellaneous Appeal was: "......not even an appeal against a preliminary decree but it was an appeal against an order of remand passed in an appeal against an order dismissing the application for final decree. The appeal M. A. (M) No 9/1956 has, therefore, to be construed as an appeal in the final decree proceedings which had a direct bearing on the validity or otherwise of the final decree passed on 18-4-1955......" 13. In conclusion, It must be held that the order assailed in the present revision petition does not suffer from any such error with thich this Court may be inclined to interfere under section 115, C. P. C. The revision is dismissed but the parties are left to bear their own costs. 14. The stay order granted earlier shall stand automatically discharged. Revision dismissed.