In a redemption suit, the court has the discretion to dispense with the requirement of a preliminary decree and pass a final decree directly, where there is no dispute regarding the amount due and the mortgagor has deposited the mortgage amount at the time of filing the suit.

JUDGMENT :- In this second appeal by the defendant the question raised is whether the trial court was in order in passing a final decree for redemption without first passing a preliminary decree. The plaintiff executed an usufructuary mortgage as per the original of Ex. A-1, dated 28-8-1971, in favour of the defendant for sum of Rs.2,000. The plaintiff deposited the sum of Rs. 2,000 in court while filing the suit for redemption. The defendant did not appear to contest the suit. The trial court straightway passed a final decree for redemption following the decision in Roshan Lal v. Bhuri Singh, AIR 1922 All 479. It also fixed the mesne profits at Rs. 61 per month, on payment of the necessary court-fee.

2. The defendant filed an appeal which was heard by the learned Subordinate Judge, Tiruchirapalli. He went into the question whether the court can grant a final decree for redemption without granting a preliminary decree and held on the basis of the above said Allahabad decision that it can be done. Therefore, the decree granted by the trial court was confirmed except regarding the question of mesne profits. The first appellate court said that the quantum of mesne profits is to be determined by separate enquiry under O. 20, R. 12 C.P.C.

3. The defendant has filed the second appeal contending that the courts below are not right in holding that in this case the passing of a preliminary decree can be dispensed with.

4. Order 34, Rule 7 (1) C.P.C. undoubtedly contemplates the passing, in the first instance, of a preliminary decree in a suit for redemption. The Code says that in such a preliminary decree, the court is to order that an account is to be taken of what was due to the defendant (mortgagee) at the date of such decree for (1) principal and interest on the mortgage; (2) the costs of suit, if any, awarded to him and (3) other costs, charges and expenses properly incurred by him upto that date in respect of his mortgage security together with interest thereon. That is under cl. (a) of R. 7 (1).

5. But there is cl. (b) of the said sub-rule which says that the Court can declare the amount due on that date, without giving a direction in the preliminary decree for ascertaining the amount as contemplated under cl. (a). In the present case, the plaintiff-mortgagor has deposited the mortgage amount of Rs. 2,000 even on the date of filing of the suit. The fact that the said amount is being deposited as the amount due to the mortgagee is also mentioned in the plaint. The defendant did not care to appear and contest the suit. Under such circumstances, the

question is whether the trial court was wrong in straightway passing a final decree for redemption as it did.

6. As already seen two alternatives are open in a suit for redemption. One is, the court can give a direction in the preliminary decree for the ascertainment of the mortgage amount. The other is to determine the amount itself without giving a direction as aforesaid. In this case, undoubtedly the trial court should be deemed to have declared the amount due to the mortgagee as contemplated under R. 7 (1) (b) of O. 34 C.P.C.

7. It is contended on behalf of the defendant appellant, that he might not have had any objection for the passing of a preliminary decree for redemption and therefore he allowed the matter to proceed ex parte and had the correct procedure as contemplated in the C.P.C., been followed, the plaintiff would have been obliged to file an application for a final decree in which the defendant would have received a notice and that after such notice, he would have had an opportunity to contend before the court that amounts more than the sum of Rupees 2,000 were due to him. This is hardly acceptable. If R. 7 (1) stops with saying that the preliminary decree should direct ascertainment of the amount as mentioned in cl. (a) of that rule, the contention may have some force. But as already seen, there is an alternative clause, namely, cl. (b) of Rule 7(1) which contemplates