Important point
An order of remand would be an interlocutory judgment which did not terminate proceedings and hence could be challenged in an appeal from the final order.

Headnote:Mortgage—Suit for redemption of mortgage—Suit property was mortgaged on 26.1.1908 for 60 years—Suit filed on a plea that period of 60 years amounted to a clog on equity of redemption and hence was null and void—Suit was dismissed holding that conditions of mortgage did not amount to clog on redemption and suit was premature—1st appeal was dismissed—High Court in second appeal upheld the findings of Court below but found that appellant had made a statement before Court that he would not take possession of property before actual expiry of mortgage period, suit could be decided on merits and thus remitted suit to 1st appellate Court—1st appellate Court decreed the suit—2nd appeal was dismissed by High Court—Appeal—Suit brought before expiry of mortgage period was premature, liable to be dismissed—Statement by mortgagee that he would not claim possession of property before expiry of mortgage period would not have conferred jurisdiction on Court—Earlier order of remand passed by High Court was interlocutory and even if not challenged at that stage could be challenged when final order was passed—Impugned order was liable to be set aside.
Held : The trial court and the first appellate court had held that the suit for redemption brought by the plaintiff was premature and rightly dismissed. It is the High Court, by its judgment dated 18.1.1966 in second appeal No. 3033/58, which took an erroneous view that because of the plaintiff’s advocate had stated that he would not seek delivery of possession before stipulated time (26.1.1968), the suit could be continued. It was on this wrong understanding of the legal position that the remand order dated January 18, 1966 came to be made by the High Court pursuant to which the appeal and further proceedings continued. If this remand order was bad in law, then all further proceedings consequent thereto would be non-est and have to be necessarily set aside. That the appellants are entitled to urge this point even at this point of time, is supported by the authority of this Court in Gangadhar (supra). For the aforesaid reasons, the appellants are entitled to succeed. The appeal is allowed. The judgment and order of the High Court of Allahabad in second appeal No. 3033/58 rendered on 18.1.1966 remanding the appeal to the first Appellate Court is set aside. Consequently, all proceedings and orders of the first Appellate Court consequent to the remand are declared to be bad and non-est and set aside. (Paras 16 and 17)

Judgment

Srikrihna, J.—One Harbans Mishra filed a civil suit No. 1070 of 1950 impleading as defendants Kesho Ram, Mst. Sukh Dei, Mst. Danpati, Sukhi Lal and Nageshwar Kalwar. The suit was one for redemption of a mortgage and with a chequered history.

2. One Mst. Toranto had mortgaged the suit property on 26.1.1908 in favour of Kesho Ram for a period of 60 years. This property is said to have been inherited by Smt. Sukh Dei, who on 1st April 1950 executed a sale deed selling her right of redemption in favour of Narvedshwar Mishra (original plaintiff and respondent herein). Sukh Dei had only a limited interest being a Hindu widow not in possession of the property. The plaintiff contended in the suit that the period of 60 years was fixed as the period of mortgage amounted to a clog on the equity of redemption and hence, null and void, and therefore, the plaintiff was entitled to redeem the mortgaged property without waiting for expiry of the mortgage period. Mst. Toranto died leaving her son Harbans Kalwar and daughter Harkali. Harbans Kalwar also died leaving behind his widow Sukh Dei the only heir. Mst. Dhanpati filed a suit No. 904 of 1951 for redemption and possession of the mortgaged property (the property which was the subject matter of suit No. 1070 of 1950) on the basis that she was the daughter of Mst. Toranto and had inherited the property in dispute after the death of Mst. Toranto and was, therefore, entitled to exercise the right of redemption of the same. Similarly, one Sukhi Lal also filed a suit No. 1486/1953 for redemption of the same property on the basis that he had purchased the right of redemption from Nageshwar who was the son of Smt. Toranto and the only heir. Mangal Prasad Tamoli, Bindeshwari & Sarjoo Devi, the legal heirs of the original mortgagee Keshav, contested all the three suits on various grounds.

3. By judgment dated 30.11.1955 the First Additional Munsiff, Gorakhpur dismissed all the three suits holding as follows:

4. That Smt. Danpati and Sukhi Lal had no right to the property aforesaid, the aforesaid Plaintiff in Suit O.S.No. 904 of 1951 and 1486 of 1953 have failed to prove that they were the heirs of Smt. Toranto or purchasers from the heirs of Toranto; that Smt. Toranto had a limited interest in the mortgaged property and the mortgage became void after her death in the year 1908. The heirs of Smt. Toranto having not claimed any redemption within 12 years of the death of Smt Toranto, the mortgagee became the possessor of the mortgaged property and the mortgage did not remain permissive and the suit for redemption filed by the plaintiff was dismissed inter alia on the ground that the Plaintiff had no right to redeem the property; held that Harbans Kalwar son of Toranto died after Smt. Toranto and Sukh Dei was the wife of Harbans Kalwar who claimed the property of Smt. Toranto after the death of Harbans Kalwar, the conditions of mortgage did not amount to clog on redemption and the suit was premature.

5. Narvadeshwar Mishra heir of the original plaintiff filed Civil Appeal No. 44 of 1956 arising out of the suit No. 1070 of 1950. Smt. Dhanpati and Sukhi Lal did not file any appeal against the dismissal of their Suit No. 904 of 1951 and 1486 of 1953, in view of the finding of trial court that suit was premature. On 23.4.1958 the Additional Civil Judge, Gorakhpur dismissed the appeal on the sole ground that the suit was premature and the terms of the mortgage were not a clog on redemption. The other points urged in the appeal were left open. On 18.1.1996 the High Court allowed the second appeal of Narvadeshwar Mishra and others (the heirs of plaintiff-respondents herein) holding that the finding of the courts below to the effect that the terms of the mortgage was not a clog on redemption and that the suit was premature was correct. The High Court, however, went further to hold that as appellant had made a statement before it that he would not take the possession of the property before actual expiry of t

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2005 Supreme(SC) 354

Important pointAn order of remand would be an interlocutory judgment which did not terminate proceedings and hence could be challenged in an appeal from the final order.

Cases Referred (3)

Important point
An order of remand would be an interlocutory judgment which did not terminate proceedings and hence could be challenged in an appeal from the final order.