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2000 DIGILAW 93 (KAR)

M. G. ESWARA RAO v. RABIYABI

2000-01-31

CHIDANANDA ULLAL

body2000
CHIDANANDA ULLAL, J. ( 1 ) THIS R. S. A. is directed against the judgment and decree dt. 21-10-97 in R. A. No. 23/94 on the file of the Civil Judge (Sr. Dn.) at Madikeri, (henceforth referred to in brief as the first Appellate Court ). In passing the same, the first Appellate Court dismissed the appeal of the appellant herein. ( 2 ) THE brief facts are as follows :the respondents Nos. 1 and 2 herein had filed O. S. No. 42/88, a suit for redemption, at the first instance before the Civil Judge, presently, the Civil Judge (Sr. Dn.) as against the appellant herein and that suit came to be decreed and the respondents Nos. 1 and 2 - plaintiffs were directed to deposit a sum of Rs. 10,000/- within 3 months from the date of the decree and in terms of the decree, the sum in question was deposited in CMC No. 10/89 on the file of the Civil Judge, Madikeri and upon that, a notice came to be issued to the respondent No. 1 on 27-7-89. ( 3 ) THAT, the said suit was not at all contested by the appellant herein, inasmuch as, they neither chose to file written statement nor challenged the evidence of the respondents Nos. 1 and 2. They did not adduce any evidence either from their side. Finally a preliminary decree came to be passed by the trial Court of the first instance. That, in the FDP proceedings, the appellant herein had put forth his claim, claiming a sum of Rs. 25,000/- towards improvements and upon adjudication, the appellants herein were awarded with a sum of Rs. 2,500.-; of course there was evidence adduced by the parties in the said FDP. Having been aggrieved with the final decree passed in the FDP, the appellant herein had filed the RSA mainly for the reason that their claim of Rs. 25,000/- for the improvements made was not granted and further that as against the said claim, a paltry sum of Rs. 2,500/- was granted. ( 4 ) THE appellant herein is represented by Sri S. R. Raviprakash, whereas the contesting respondents Nos. 1 and 2 are represented by Smt. B. S. Saraswati. ( 5 ) IT was vehemently argued by Sri Raviprakash that both the Courts below had miserably failed to appreciate that a sum of Rs. 2,500/- was granted. ( 4 ) THE appellant herein is represented by Sri S. R. Raviprakash, whereas the contesting respondents Nos. 1 and 2 are represented by Smt. B. S. Saraswati. ( 5 ) IT was vehemently argued by Sri Raviprakash that both the Courts below had miserably failed to appreciate that a sum of Rs. 25,000/- was spent by the appellant and that the same was genuinely and legally claimed by his party. It was also argued by him that the Court had no jurisdiction as it is the Civil Judge (Sr. Dn.) before whom the suit came to be preliminarily decreed and as such, according to him, the FDP would not have been before the Court of the Civil Judge (Jr. Dn. ). ( 6 ) THE learned Counsel Smt. Saraswathi appearing for the respondents Nos. 1 and 2 on the other side supported the judgments and decrees passed by both the Courts below. That, the point of jurisdiction was not raised even by this appellant and it is for the first time before this Court they sought to raise the same and therefore according to her, it was not at all available for the appellant to raise that in the RSA. It was also argued by her that the appellant herein having not challenged the preliminary decree, there was nothing for them to seek in the FDP even if it is true that the appellants herein did make certain improvements in putting up a load bearing wall to save the property. Even otherwise, according to her, at the relevant point of time they would not have spent that sum and they have been granted with a sum of Rs. 2,500/- for electrical installations that came to be erected by him. ( 7 ) AT the outset, I have to point out here that the appellant herein in the suit did not challenge the claim at all. As pointed out as above, they have not even filed a written statement to counter the case that was made out by the respondents Nos. 1 and 2 in the suit and further more, made any claim as against the respondents Nos. 1 and 2 for the improvements they claim to have made in the matter of erection of the eastern load-bearing wall of the premises mortgaged to them. Even as I see, the evidence of the respondents Nos. 1 and 2 in the suit and further more, made any claim as against the respondents Nos. 1 and 2 for the improvements they claim to have made in the matter of erection of the eastern load-bearing wall of the premises mortgaged to them. Even as I see, the evidence of the respondents Nos. 1 and 2 adduced in the suit had remained totally unchallenged and it is because of that the preliminary decree came to be passed against the appellants. ( 8 ) IN this context it is appropriate for me to advert to Sec. 97 of the C. P. C. Under the said provision of law, when any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Admittedly in the instant case, the appellants herein did not challenge the preliminary decree at all. If their case was that they did spend a substantial sum either for the improvement or for saving of the subject property mortgaged, nothing prevented them from putting forth that claim as against the respondents Nos. 1 and 2 in that suit. But interestingly enough, they did not do that at all during the pendency of the suit and knowingly all about, they allowed the suit to be decreed preliminarily. If the suit came to be preliminarily decreed without there being any contest by this appellant, in my considered view the final decree would have been drawn in consonance with and in tune with the preliminary decree that was drawn by the trial Court. ( 9 ) THEREFORE according to me, it was totally untenable on the part of the appellants to put forth any claim in the final decree proceedings in the matter of improvements they claimed to have made in respect of the subject property mortgaged. That I say for the reason that all the controversies between the parties in a suit have to be settled finally in the suit itself, that obviously based on the pleadings of the parties. As I pointed out as above, the appellant herein did not counter the claim of the respondents Nos. 1 and 2 in the suit. If in the event they did not put forth such a claim as against the respondents Nos. As I pointed out as above, the appellant herein did not counter the claim of the respondents Nos. 1 and 2 in the suit. If in the event they did not put forth such a claim as against the respondents Nos. 1 and 2 in the suit, there would have been naturally an issue on that and the trial Court would have tried that issue to give a finding thereto. Had there been a finding thereon, it would have been obvious that the exact amount that had to be paid to the appellants herein by the respondents Nos. 1 and 2 for the improvements made if any would have been the subject-matter in the final decree proceedings. Unfortunately for the appellants that was not the situation at all. ( 10 ) THAT being the position, I am of the considered view that the Court below had failed to appreciate that position in law and therefore granted a sum of Rs. 2,500/- on that count erroneously. Had there been a challenge by the respondents Nos. 1 and 2 as against that amount, probably this Court would have definitely interfered with that award of the sum in the FDP towards the improvements. Fortunately, for the appellant, the respondents Nos. 1 and 2 did not choose to challenge the same. ( 11 ) THE learned Counsel for the appellant Sri Ravi Prakash had cited before me good number of decisions. So did Smt. Saraswathi, the learned Counsel for the respondents. In view of the above conclusions I reached, I thought that the decisions cited by both the sides are of no relevance and I have therefore not chosen to advert to any of them here. ( 12 ) IN that view of the matter, I do not find any merit in the instant RSA. The RSA therefore stands dismissed with cost. ( 13 ) ADVOCATE fee in the R. S. A. is fixed at Rs. 2,000/ -. --- *** --- .