JUDGMENT Sureshwar Thakur, J. - The plaintiff instituted a suit, under, the H.P. Debt Reduction Act, for possession by way of redemption of mortgage, of, the suit property AND for accounts. The plaintiff''s suit was dismissed by the learned trial Court. Being aggrieved therefrom, the plaintiff instituted an appeal before the learned District Judge, Shimla, whereupon, the latter allowed the plaintiff''s appeal and pronounced a decree for possession of the suit property, subject to payment of Rs. 200/-, as redemption money, by the plaintiff, to the defendant/respondent herein. The learned District Judge, also directed that the aforesaid quantum of money, being liquidated by the plaintiff within a period of six months, period whereof was enjoined to commence, from, the date of the learned First Appellate Court, pronouncing its decision upon Civil Appeal No. 96-S/13 of 1999. Apparently, the aforesaid quantum of redemption money, remained unliquidated, by the plaintiff vis-a-vis the defendant, within, the time stipulated, in the verdict pronounced by the learned First Appellate Court. 2. Before proceeding to determine, the validity(ies) of the endeavours, made, by the plaintiff, to seek enlargement, of, the peremptory period, prescribed in the decree pronounced, by the learned District Judge, Shimla, (i) it would be necessary, to, allude to the trite fact, of, the defendant impugning, the judgement and decree, pronounced by the learned First Appellate Court, by his instituting, a Regular Second Appeal, before this Court, (ii) the aforesaid Regular Second Appeal bearing RSA No. 503 of 2002-G, being disposed off, by this Court under a pronouncement recorded, on, 02.03.2013. (iii) A perusal of the order sheets, of, the aforesaid RSA, disclose, of, the plaintiff being arrayed, as a respondent, in the aforesaid RSA, (iv) AND his being initially represented on 14.11.2002, by his duly constituted counsel, (v) whereafter, upto a final verdict being pronounced, upon RSA No.503 of 2002, he stood represented by his duly constituted counsel. (vi) Since, the pronouncement, of, a verdict, upon, the apposite Civil Appeal No. 96-S/13 of 1999, by the learned First Appellate Court, upto, a decision being recorded by this Court, upon, RSA No. 503 of 2002-G, the plaintiff visibly failing, to liquidate the mortgage money vis-a-vis the defendant, (vi) obviously the mandated time prescribed, in the verdict pronounced by the learned First Appellate Court, expired, much prior to a final verdict being pronounced by this Court, upon, the aforesaid RSA.
A perusal of the order sheet recorded, on 30.10.2012 in RSA No.503 of 2012-G, discloses, of, the counsel for the plaintiff/respondent being directed to make an ascertainment, whether the mortgage sum of Rs. 200/-, being or not deposited by the plaintiff. On ascertainments, qua the aforesaid facet, being made by the counsel, for the plaintiff, the latter on 29.11.2012, purveyed an information vis-a-vis the Court, qua the mortgage money being not deposited. Consequently, an application seeking enlargement of time, for, depositing the mortgage money was instituted before this Court. However, relief upon the aforesaid application, stood declined, on the trite ground of it, being not, grantable by this Court, rather it being grantable by the court concerned, which had fixed the time for its deposit. Consequently, the learned District Judge, Shimla, who pronounced, a decree for possession, by way of redemption and had also assessed, the redemption/mortgage money, in a sum of Rs. 200/ - besides had prescribed a period six months, for its deposit, period whereof was mandated, to, commence, from, its making its rendition, upon, his being seized, with the apposite application, proceeded to decline the apposite relief to the plaintiff/petitioner herein. Consequently, the plaintiff/petitioner herein is aggrieved therefrom, hence, through the instant petition, concerts to beget its reversal. 3. The relevant hereat provisions, of, the CPC ARE borne in Order 34, Rule 7 of the CPC, provisions whereof stand extracted hereinafter:- 7. Preliminary decree in redemption Suit.
Consequently, the plaintiff/petitioner herein is aggrieved therefrom, hence, through the instant petition, concerts to beget its reversal. 3. The relevant hereat provisions, of, the CPC ARE borne in Order 34, Rule 7 of the CPC, provisions whereof stand extracted hereinafter:- 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- (1) 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 rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant 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 encumbrances 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 interest, 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 sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property to 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. 4. Upon their incisive besides circumspect readings, (i) thereupon, the judgment and decree rendered by the learned First Appellate Court, for, possession of the mortgaged property besides for its redemption, bears consonance, with, the mandate of sub-rule(1), to, Rule (7) of Order 34 of the CPC, comprised in its (ii) after it taking account(s), its mandating therein the mortgage money, (iii) also its specifying therein, the specific period, within, which, it was enjoined to be liquidated, by the plaintiff vis-a-vis the defendant. Since, the aforesaid mandate carried, in the operative part of the judgment and decree pronounced, by the learned First Appellate Court, hence falls within the domain of Order 34, Rule 7 of the CPC, (iv) thereupon, reiteratedly with the apposite statutory prescription(s), occurring, in the afore extracted provisions of the CPC, being visibly carried under the caption ''preliminary decree'', (v) thereupon their embodiment in the judgment and decree, rendered by the learned First Appellate Court, is, obviously, construable to render the apt condition precedent, to hence be a preliminary decree, (iv) sequel whereof, is of, upon the apposite deposit or liquidation(s) being made, the court concerned, being enjoined, to confirm and countersign, the compliant accounts taken, under, preceding therewith clause(s), thereafter, the Court concerned ensuring compliance, of, the further provisions embodied in sub-rule(1) to Rule 7 of Order 34 of the CPC, comprised in its ensuring delivery of possession of the suit property vis-a-vis the plaintiff. 5.
5. The effect of the aforesaid discussion, is, of the apposite mandate, embodied, in the judgment and decree, pronounced by the learned First Appellate Court being construable to be a preliminary decree, (i) thereupon, the mandate, of, sub-rule (2), to, Rule 7 of Order 34, of the CPC, begets attraction, within ambit whereof, statutory leverage stands conferred upon the court concerned, to, upon (a) good cause being shown; (b) terms being fixed by the court concerned, from time to time or at any time, before passing, of, final decree, for foreclosure or sale, to extend time fixed, for payment of amount, found or declared due under sub-rule (1) or vis-a-vis the amount adjudged due in respect of subsequent costs, charges, expenses and interest. The aforesaid statutory provisions, encompass therewithin, A, self contained code, for, the relevant purpose, hence, oust the play of Section 148 of the CPC, (c) besides even beyond the apposite time prescribed, for, the relevant purpose, in the preliminary conditional decree, yet vest plenary power, upon, satiation(s) of their mandate, to enlarge the apt prescribed time. With a wide plenary statutory leverage, standing conferred, upon, the learned First Appellate Court, thereupon, the counsel for the petitioner herein contends (c) that the application for enlargement or extension of time, from, the one prescribed, in the operative part, of the judgment and decree, rendered by the learned First Appellate Court, being tenably grantable vis-a-vis the plaintiff/petitioner herein. (d) He contends that, the evident good cause, for his being entitled, to the mandate of the apposite sub-rule, is comprised, in, the factum of the petitioner, not, being apprised, by the counsel representing him, before the learned First Appellate Court, (e) of the period within which the mortgage money, was, to be deposited. (f) He also contends, that, given the pronouncement being made by this Court on 14.11.2002, whereby, this Court had stayed the operation and execution, of, the judgment and decree rendered in Civil Appeal No.96-S/13 of 1999, whereafter, with this Court, under, a pronouncement recorded on 27.02.2003, making the aforesaid interim orders hence absolute, (g) thereupon, the plaintiff/petitioner herein being defacilitated, to, within the time prescribed in the judgment and decree rendered by the learned First Appellate, make deposit, of the mortgage money/redemption money, within, the period stipulated therein. 6.
6. The aforesaid grounds, as reared, in the apposite application by the plaintiff/petitioner herein also theirs constituting a good and sufficient cause, for the relevant omission(s) made by the plaintiff, are per se stripped of their veracity, (i) given no apposite motions being made, since the commencement, of, six months from the rendition, made, by the learned First Appellate Court, AND upto the termination of the aforesaid period, (ii) though, the ground for the omission(s) of the plaintiff is anchored, upon, the counsel representing him before the learned First Appellate Court, not, apprising him about the peremptory necessity, of, his making the apposite deposit(s), yet tenacity thereof is ripped apart, by averments contained in his affidavit, comprised in Ex.AW1/A, averments whereof make, disclosure(s), (iii) of, his counsel apprising him, about, the learned First Appellate Court allowing his appeal, thereupon, his subsequent disclosure(s) therein, of, his counsel, not, communicating him, about, his liquidating mortgage money vis-a-vis the defendant, especially within, a period of six months, from, the date of the learned trial Court pronouncing, its apposite verdict, upon the apposite first appeal, (iv) are also per se contradictory vis-a-vis the earlier thereto articulation(s) borne therein, hence, are per se contrived. Moreover, the best evidence, for strengthening the aforesaid espousals reared by the plaintiff, in his affidavit, comprised in Ex.AW1/A, was, comprised in his placing, on record, (v) the apposite communication addressed to him, by his counsel, with revelations occurring therein, of its, not containing, any articulations, of, the dire necessity, of, his making the apposite deposits, within, the period stipulated in the apposite verdict pronounced, by the learned First Appellate Court, (vi) yet, all the aforesaid communication(s), occurring in the relevant communication(s) ensuing, qua the relevant facts, inter se the applicant/petitioner herein and his counsel representing him, before, the learned First Appellate Court, are evidently withheld, (vii) wherefrom it is befitting, to conclude, of, the applicant/petitioner herein, rearing a false plea in Ex.AW1/A, qua his relevant omissions, spurring from the counsel representing him, before, the learned First Appellate Court, not, awakening him, qua the dire necessity, of, his making deposit of mortgage money, within a period, of, six months, commencing from the date, of pronouncement, of the apposite verdict, by the learned First Appellate Court in the apposite civil appeal, rather his apprising him only about the fate of the appeal. (vii) Hence, his being precluded to make the apt deposit.
(vii) Hence, his being precluded to make the apt deposit. The effect thereof, is, of the purported ''sufficient cause'' embodied in Ex. AW1/A, is shorn of its veracity. Contrarily, the relevant omission(s), of, the applicant/petitioner herein ARE ingrained with a pervasive vice, of deliberateness also are gripped with active malafides. 7. Be that as it may, even if, this Court, on 14.11.2002, had, temporarily stayed, the operation and execution of the impugned judgment and decree, order whereof, was, made absolute by this Court on 27.02.2003, (i) nonetheless, despite, this Court staying the operation and execution of the judgment and decree, rendered by the learned First Appellate Court, yet did not, relieve the plaintiff/petitioner herein, to while furnishing reply, to the apposite application, preferred by the defendant before this Court, wherein, he prayed for staying the operation and execution of the judgment and decree, rendered, by the learned First Appellate Court being stayed, to therein make a prayer, of, his being permitted, to conditionally deposit, the mortgage money, before the learned First Appellate Court. RSA No. 503 of 2002, instituted before this Court by the defendant, was barred by one day. A perusal of the reply furnished by the plaintiff/petitioner herein, to the defendant''s application, for staying the operation and execution of the judgment and decree, rendered, by the learned First Appellate Court, was filed on 25.11.2002, hence, before expiry of a period of six months prescribed in the judgment and decree, rendered, by the learned First Appellate Court, for the plaintiff hence making the apposite deposit, (ii) thereupon, it was also open thereat, for the plaintiff to seek leave, of this Court, to permit him to conditionally deposit, the mortgage money comprised in a sum of Rs. 200/, before the learned First Appellate Court, even despite, this Court proceeding, to stay the operation and execution of the judgment and decree impugned herebefore, (iii) conspicuously when it would make a palpable display of his bonafide(s), to beget compliance therewith, besides when it would also not impinge upon the factum, of, upon, the regular second appeal being dismissed by this Court, his being deprived, of, the benefits of the apposite decree, (iv) rather would obviate befallment, of, concomitant frustration(s) upon the plaintiff, arising from his being deprived to rear the fruits of the apposite decree, merely, for, his omitting to comply with the peremptory condition(s) embodied therein.
Contrarily, a reading of the reply furnished by the plaintiff/petitioner herein, to the apposite application for stay, makes a disclosure, of, the plaintiff therein, on affidavit making disclosures, of, his depositing the mortgaged money, before the Court concerned. The aforesaid disclosure, on affidavit, is per se false, with a concomitant effect, of, its scoring off, the effects of all the espousal(s) canvassed by the applicant/petitioner herein, of his hence being constrained, by purported good and sufficient cause, to hence make the relevant omissions. Preponderantly, also with the apposite application, being preferred, much belatedly, rather during the pendency of a second appeal before this Court, is a grossly procrastinated attempt, bereft of any bonafides, hence, the leave sought therein, from, the learned First Appellate Court, for, enlarging the time, from, the one prescribed in the verdict rendered by the learned First Appellate Court, for, hence, the plaintiff/petitioner herein making the apt deposits, is also a specious concert, warranting invalidation, as aptly done by the learned First Appellate Court. 8. In aftermath, as mandated by the Hon''ble Apex Court in a case titled as P.R. Yelumalai vs. N.M. Ravi, (2015)9 SCC 52 , the relevant paragraph No.16 whereof is reproduced as under:- "16. Thus, in the present case, the plaintiff buyer has clearly defaulted on time of depositing as well as the mode of payment. The decree was self-operative and the suit stood dismissed for non compliance with the decree. Further, the plaintiff buyer also failed to make out a case for condonation of delay. In view of these findings, we are of the opinion that the questions formulated by the High Court in the order of remand are not required to be answered by the trial Court. Consequently, the appeal filed by the plaintiff buyer is dismissed and the appeal filed by the defendant seller is allowed. There shall be no order as to costs." (p..61) wherein, it is mandated that, upon, the litigant concerned not meteing compliance, with, the peremptory conditions cast upon him, under the apposite conditional decree/preliminary decree nor his being entitled for enlargement or for extension(s) of time, hence, begetting the sequel of the apposite suit entailing dismissal. Consequently, thereupon the plaintiff''s suit, begets, a conclusion of its warranting dismissal, upon, his failing to comply with the peremptory condition(s), of, the conditional preliminary decree. 9.
Consequently, thereupon the plaintiff''s suit, begets, a conclusion of its warranting dismissal, upon, his failing to comply with the peremptory condition(s), of, the conditional preliminary decree. 9. For the foregoing reasons, there is no merit in the instant petition and it is dismissed accordingly. IN sequel, the impugned order is maintained and affirmed. All pending applications also stand disposed of. No costs. Records be sent back forthwith.<|3> .