Gyasi Ram Vs. Brij Bhushan Das &
Ors [1966] INSC 94 (30 March 1966)
30/03/1966
ACT:
Code of Civil Procedure (Act 5 of 1908)
O.XXXIV, r. 7(1) (c) (i) and (ii)-"Amount adjudged in respect of
subsequent costs, charges, expenses and interests",-Scope of.
HEADNOTE:
A preliminary decree was passed in the
appellant's suit for redemption of a mortgage. The decree specified the amounts
due as principal and interest, provided for payment of future interest at 3 %
from the date of decree till date of realisation, and payment of the amount due
by a certain date. It also provided that, if payment was made by that date, a
final decree would be passed in favour of the appellant, but that, if the
payment was not so made, the respondent would be entitled to apply for a final
decree for foreclosure. The appellant appealed against the preliminary decree
to the High Court and applied for stay of the order requiring him to deposit
the decretal amount within the date fixed by the trial court, and the High
Court granted stay on his undertaking to pay 9 % interest instead of 3 %,
during the period of stay. Subsequently, the High Court dismissled the appeal
and confirmed the preliminary decree, but, the additional amount due for the
period of stay on account of the undertaking, was not included by the High
Court in the preliminary decree. The appellant then applied for a final decree
in his favour, after depositing a sum which was more than the amount to be
deposited when calculated according to the preliminary decree, but was less
than the amount when circulated according to the condition imposed by the High
Court in its stay order. The trial Court however directed that a final decree
for foreclosure in favour of the respondent be drawn up. On appeal, the lower
appellate court ordered that a final decree be drawn up in favour of the
appellant. In second appeal, the High Court took the view that the appellant
had to deposit the entire amount due on the date of the deposit, as per its
direction in the stay order, and as there, was a shortage on the date of
deposit- though the shortage was made up after the judgment of the lower
appellate court-only a final decree for foreclosure could be passed in the
respondent's favour.
In appeal to this Court, HELD:The appellant
was entitled to a final decree.
In order that a final decree may be passed in
favour of the appellant, he had to carry out before a final decree is passed,
the terms of the preliminary decree and to pay "the amount adjudged due in
respect of the subsequent costs, charges, expenses and interests" under
O.XXXIV, r. 7(1) (e) (i) and (ii) of the Civil Procedure Code. The appellant
had carried out the terms of that decree by the deposit made by him and he had
nothing to pay on account of Subsequent charges, costs, expenses and interest,
because, the extra interest of 6% was not made a part of the decree, and it
could not come within the words "in respect of subsequent costs, charges,
expenses and interests." as it arose out of an independent order of the
High Court 110 and was only payable on account of the undertaking for purposes
of stay. Further, such subsequent costs. charges, expenses and interest have to
be adjudged before the mortgagor is asked to deposit the amount. As regards the
appellant's undertaking in the stay matter the court could insist on his
honouring it before the final decree is passed. [112 F-113 C].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 959 of 1964.
Appeal by special leave from the judgment and
decree dated March 16, 1963 of the Madhya Pradesh High Court in Second Appeal
No. 86 of 1962.
S. V. Gupte, Solicitor-General, Rameshwar
Nath, S. N. Andley P. L. Vohra and Mahinder Narain, for the appellant.
A. K. Sen and R. Gopalakrishnan, for
respondent no. 1.
The Judgment of the Court was delivered by Wanchoo,
J. This is an appeal by special leave against the judgment of the Madhya
Pradesh High Court and arises in the following circumstances. The appellant
brought a suit for redemption of certain mortgaged property. A preliminary
decree was passed in the suit on February 3, 1954. It specified the amount due
as principal and the amount due as interest upto a certain date. It also
provided that future interest was to be paid at three per cent per annum on a
certain sum from that date till the date of realisation.
Parties were to bear their own costs. Further
the decree provided for payment of the amount due on or before July 15, 1964 or within such time as might be extended. It also provided that if payment
was made within the time limited under O.XXXIV r. 7(1)(c) of the Code of Civil
Procedure, final decree would be passed. In the alternative it was provided
that if the deposit was not made, the respondent would be entitled to apply for
passing of a final decree praying that the right of the appellant to redeem the
mortgaged property be debarred.
There were appeals by both parties from this
preliminary decree to the High Court. In the meantime the appellant had prayed
for extension of time and the trial court had extended time for making payment
upto August 15, 1954.
About the same time, the appellant applied to
the High Court praying that the order requiring him to deposit the decretal
amount by August 15, 1954 be stayed till the disposal of the appeal by the High
Court. On this application, the High Court passed an order on July 26, 1954. This order provided that if the appellant gave an undertaking to pay nine
per cent per annum interest instead of three per cent per annum during the
period of stay, the order of the trial court directing the appellant to deposit
the decretal amount by August 15, 1954 would be stayed. Thereupon the appellant
gave an undertaking to the trial court on August 7, 1954 that he would pay nine per cent per annum simple interest instead of three per cent per annum
during the period 111 of stay. In consequence the order of stay passed by the
High Court came into force and no deposit was made by August 15, 1954. On October 16, 1958, the High Court dismissed both the appeals and the preliminary
decree stood confirmed.
On March 20, 1959, the appellant applied to the trial court for permission to deposit the sum of Rs. 42,204/5/-. On March 27, 1959, the trial court permitter the appellant to deposit the amount but made it
clear that this did not amount to, any extension of time for making the
deposit, and the question whether the deposit was made within time would be
decided after hearing both parties. Notice was also issued to the respondent on
the same date. On March 28, 1959, the appellant deposited the amount. On April 8, 1959 the respondent appeared and objected that the amount due was not Rs.
42,204/5/- but Rs. 46,882/6/6 and therefore the deposit was short by a sum over
Rs. 4,000/-. Thereupon the appellant deposited a further sum of Rs. 4,590/- on April 9,1959 and prayed for a final decree in his favour. The trial court held on April 18, 1959 that the deposit was made beyond time and therefore directed that a final
decree for foreclosure in favour of the respondent be drawn up. The appellant
then went in appeal to the District Judge. The Additional District Judge who
heard the appeal rejected the memorandum of appeal as insufficiently stamped
The appellant then filed a revision before the High Court. The High Court
allowed the revision on July 22, 1961 and remanded the appeal to the Additional
District Judge for decision on the merits. On March 23, 1962, the Additional District Judge allowed the appeal holding on the basis of O.XXXIV, r. 8 that
as the amount had been paid before the final decree was passed, it was within
time. Consequently the Additional District Judge ordered that a final decree be
drawn up in favour of the appellant. It may be noticed that it was also
contended before the Additional District Judge that the amount deposited was
short by Rs. 88/ 1/-. The Additional District Judge pointed out that this was
not made a ground of attack in the trial court. In any case be held that the
amount which had to be deposited was as required by the preliminary decree and
that the same had certainly been deposited. We may add that it is not in
dispute between the' parties that if the amount to be deposited is to be in
accordance with the preliminary decree, the appellant has deposited that
amount, rather more. The shortage has occurred because for the period of stay
the High Court had ordered the payment of an extra six per cent per annum
interest and it is with respect to that interest that the shortage has
occurred.
The respondent then went in second appeal to
the High Court.
The High Court agreed with the Additional
District Judge.
and held that in view of O.XXXIV r. 8(1) the
deposit made on April 9, 1959 before the final decree was passed on April 18, 1959 was within time, even though the money might have been deposited 112 after
the time fixed under O.XXXIV r.7. But the High Court also took the view that
the mortgagor-appellant had to deposit the entire amount due on the date of the
deposit and as there was a shortage of Rs. 88/1/-, the entire amount had not
been deposited and in consequence no final decree could be passed in favour of
the appellant. In the result the High Court set aside the order of the
Additional District Judge and restored the order of the trial court passing a
decree for foreclosure in favour of the respondent.
Thereupon the appellant obtained special
leave from this Court, and that is how the matter has come before us.
The only question raised on behalf of the
appellant is that he had deposited the amount which was strictly due under the
preliminary decree and something more. The shortage was only on account of the
sum due as a result of the stay order passed by the High Court by which he was
required to pay six per cent per annum more as interest for the duration of the
stay. It is urged that this amount could not be taken into account in
considering the question whether the appellant bad deposited' the entire amount
due under the preliminary decree. We are of opinion that there_ is force in
this contention and the appeal must succeed. Under O.XXXIV, r.
8(1) the mortgagor can deposit all amounts
due under O.XXXIV r. 7(1) before the final decree debarring him from all rights
to redeem is passed. Order XXXIV r. 7(1) lays down what a preliminary decree
should contain and we are in the present case concerned with cls. (b) and (c)
thereof. In this case the preliminary decree had declared the amount due upto a
certain date towards principal and interest and had also provide for three per
cent per annum interest on a certain sum from that date and had directed as
required by cl. (c) of O. XXXIV r. 7(1) that if the mortgagor-plaintiff paid in
court the amount found before a certain date a final decree in his favour would
be passed. The preliminary decree also laid down that if payment was not made
within the time fixed a final decree for foreclosure in favour of the defendant-mortgagee
would be passed. Now under O.XXXIV r. 7(1)(c)(i) and (ii) what the appellant
had to deposit was the amount found under the preliminary decree and also
"the amount adjudged due in respect of subsequent costs, charges, expenses
and interests" It is not in dispute, as we have already indicated that the
appellant paid the amount found due under the preliminary decree and also the
subsequent interest as provided in-the decree. Only there was a shortage in the
extra amount he had undertaken to pay as extra interest at the rate of six per
cent per' annum for the period of stay. The question is whether this amount can
be said to be within the words "the amount adjudged due in respect of
subsequent costs, charges, expenses and interests". We are of opinion that
this extra amount which was to be paid on account of the undertaking of the
appellant for the purpose of stay cannot come within the words "in respect
of subsequent costs, charges, 113 expenses and interests". It is not in
dispute that the High Court dismissed the appeal of the appellant in 1958 and
confirmed the preliminary decree and that the amount due on account of the
undertaking to pay extra interest at the rate of six per cent per annum for the
period of stay was not included by the High Court in the preliminary decree.
This amount arose out of an independent order of stay and though the appellant
was bound to pay it in view of his undertaking, it was not made a part of the
amount due under the preliminary decree. Nor can it be said that it was due in
respect of subsequent costs, charges, expenses and interests. Besides, such
subsequent costs, charges, expenses and interests have to be adjudged before
the mortgagor is asked to deposit the amount and it is not in dispute that no
ad judgement as to any subsequent costs, charges, expenses and interests was
made. So in order that a final decree may be passed in favour of the appellant,
he had to carry out the terms of the preliminary decree and it is not in
dispute that he had carried out the terms of that decree, and he had to pay
nothing account of subsequent charges, costs, expenses and interests, for
nothing was adjudged in respect of these. Nor as we have said already can the
amount due as extra, interest on the basis of the undertaking given by the
appellant for the period of stay be considered to be of the nature of
subsequent costs, charges, expenses and interests mentioned in O.XXXIV r.
7(1)(c)(i) and (ii).
It is however urged that on this view there
would be no way to enforce the appellant's undertaking to pay extra interest
for the period of stay. We do not think so. It would in our opinion be in order
for the court to insist before it passed the final decree that the appellant
honours his undertaking. But that is not to say that this amount due under an
independent order of the High Court in connection with stay became part of the
amount due under the preliminary decree or could be considered to be
"subsequent costs. charges, expenses and interests". We may add that
the shortage in question was made good by the appellant soon after the order of
the Additional District Judge and long before the judgment of the High Court.
As we have come to the conclusion that this amount due on account of the
undertaking given by the appellant in the matter of stay cannot be taken to be
part of the amount due under the preliminary decree, it must be held that the
appellant was entitled to a final decree in his favour. We therefore allow the
appeal, set aside the order of the High Court and restore the order of the
Additional District Judge. The respondent will be entitled to withdraw the
amount deposited by the appellant including the amount deposited on April 21, 1962 on the conditions in that order. In the circumstances however we pass no
order as to costs throughout.
Appeal allowed.
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