IMPORTANT POINT
Although by reason of preliminary decree in the suit for redemption of usufructory mortgage, the court may fix the time for payment of the amount declared due but default in deposit of such payment would not debar him from a right to redeem the mortgaged property.

Headnote:Transfer of Property Act, 1882-Sections 58(d) and 60-Redemption of usufructory mortgage-C.P.C. 1908 -Order 34 Rules 7 and 8-Preliminary and final decrees in case of redemption of mortgage-Limitation Act, 1963-Articles 61 and 137-Limitation for Redemption of mortgage-One Mr. Naik created a usufructory mortgage of his property in favour of Achaldas Oswal for 5 years-As mortgagor did not pay dues relating to said property to Kolhapur Bank, it was sold by auction which was purchased by respondent 1-Respondent 1 later applied redemption of usufructory mortgage-Preliminary decree passed on 18-1-72 -He deposited mortgage money within time fixed but made an application under Order 34 Rule 8 for extension of time of deposit of expenses, municipal taxes and interest rejected on 30-1-1975-Necessary deposit made on 6-2-1975 without prejudice to right of third parties-Application for final decree made within 3 years of 6-2-75-Trial Court rejected as time barred-High Court allowed it in revision holding that there is no limitation for filing an application for preparation of final decree in respect of redemption of usufructory mortgage-Appeal to Supreme Court -Whether High Court was right? (Yes)-Appeal dismissed.
       Held : In the case of the mortgage other than usufructuary mortgage, the mortgagee can file an application to pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds thereof 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. Sub-rule (1) of Rule 8 shows that only a mortgagor can apply to the Court to pass a final decree on payment of the amount found or declared due under the preliminary decree on making this deposit and upon filing the application as provided for in sub-rule (1) of Rule 8 the mortgagor can request the Court to order the mortgagee to put him in possession of the properties which were the subject matter of the mortgagee. The amount determined by the Court which the mortgagor is liable to pay to the mortgagee can be deposited before the right of redeem is lost. It may be noticed that even sub-rule (2) of Rule 7 of Order XXXIV does not apply to the usufructuary mortgage. It may be noticed that by reason of the amendment introduced in 1929 the right conferred earlier on a usufructuary mortgage to bring the property to sale in case of the mortgagor not making the payment within the time fixed in the decree was taken away. As sub-rule (2) of Rule 7 is applicable only in a case of mortgages other than the usufructuary mortgages, a usufructuary mortgagor is not entitled to seek extension of time and in that view of the matter the fact that such an application made by the First Respondent herein was rejected becomes irrelevant. (Para 25)
       Held : As regards application of Article 137 of the Limitation Act, the different High Courts have laid down different laws. (Para 26)
       After reviewing case law Held : We are, therefore, of the opinion that although by reason of preliminary decree in the suit for redemption of usufructuary mortgage, the Court may fix the time for payment of the amount declared due but default in depositing such payment would not debar him from a right to redeem the mortgaged property. (Para 45)
       Held finally : We, therefore, do not find any merit in this appeal which is accordingly dismissed. No costs. (Para 45)

JUDGMENT

S.B. Sinha, J.-Leave granted.

2. This appeal is directed against a judgment and order dated 9th November, 2001 passed by a learned Single Judge of the Bombay High Court in Civil Revision Application No. 310 of 1998 whereby and whereunder he allowed the revision application filed by the respondent herein questioning an order dated 17th October, 1990 passed by the Joint Civil Judge, S.D. Kolhapur in final decree proceeding registered as Application No. 21 of 1975 rejecting an application purported to be under Order XXXIV, Rule 8 of the Code of Civil Procedure ( C.P.C. for short) for preparation of final decree in Special Civil Suit No. 78 of 1969 wherein preliminary decree was drawn on 18th January, 1972 on the ground that the same was barred by limitation.

Facts :

3. The property in suit is a building bearing City Survey No. 281 situated at Ward B, in the town of Kolhapur. Admittedly, Pandit Govind Shinde Naik, the owner of the property, mortgaged the same with Achaldas Oswal (Original Defendant No. 1 - since deceased) for a period of five years. The mortgage was an usufructuary one. As the dues in relation to the suit property was not repaid by Pandit G.S. Naik to Kolhapur Bank, the property was sold in auction which was purchased by the first respondent herein. He filed a suit marked as Special Civil Suit No. 78 of 1969 inter alia for redemption of mortgage wherein a preliminary decree was passed on 18th January, 1972; the operative portion whereof reads thus:-

"The plaintiff shall deposit into Court the mortgaged money amounting to Rs. 11,000/- within three months on or before 17-4-1972.

The amount of expenses proportionately incurred by the mortgagee or defendant No. 1 to the above debt in respect of the mortgage security including the payment of Municipal taxes and refers to the mortgaged property together with interest be taken through Commissioner. The plaintiff shall apply for appointment of the Commissioner in this respect in final decree proceedings.

Order regarding possession of the suit property and cost of the suit would be passed in final decree. The preliminary decree be drawn accordingly."

4. Within the stipulated time, namely, on or about 17th April, 1972, the said sum of Rs. 11,000/- was not deposited by the plaintiff - Respondent No. 1.

5. He, however, filed an application marked as Misc. Application No. 85 of 1972 for extension of time to make the payment as directed in the preliminary decree, which was rejected by order dated 30th January, 1975. Although the said order was not challenged by the plaintiff, he obtained the permission to make necessary deposit which was complied with by the plaintiff on or about 6th February, 1975. The said order, however, was passed without prejudice to the rights of the parties. Within a period of three years from the said date, namely, 6th February, 1975, the first respondent filed an application for preparation of a final decree. An objection thereto was filed by the original defendant No.1, inter alia, on the ground that the same was not maintainable as being barred by limitation. In the said objection it was also contended out that the respondent s application for extension of time having been dismissed by the court by the said order dated 30th January, 1975, the said proceeding was not maintainable. The learned Civil Judge accepting the plea of the appellant herein that the said application was barred by limitation dismissed the said application for preparation of a final decree. Aggrieved by and dissatisfied therewith, the first respondent herein filed a revision application before the Bombay High Court which, as noticed hereinbefore, was allowed by the impugned judgment holding that there is no period of limitation for filing an application for preparation of a final decree in respect of redemption of usufructuary mortgage.

Submissions :

6. Mr. V.A. Bobde, learned senior counsel appearing on behalf of the appellant herein, would submit that the High Court committed a m

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2003 Supreme(SC) 38

IMPORTANT POINTAlthough by reason of preliminary decree in the suit for redemption of usufructory mortgage, the court may fix the time for payment of the amount declared due but default in deposit of such payment would not debar him from a right to redeem the mortgaged property.

Cases Referred (9)

IMPORTANT POINT
Although by reason of preliminary decree in the suit for redemption of usufructory mortgage, the court may fix the time for payment of the amount declared due but default in deposit of such payment would not debar him from a right to redeem the mortgaged property.