Satya Narain & Ors.
Vs. Om Prakash & Ors. [2009] INSC 651 (30 March 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2012 OF 2009 (@ SPECIAL
LEAVE PETITION (CIVIL) NO. 5028 OF 2007) Satya Narain and Others
.....Appellant(s) - Versus - Om Prakash and Others ....Respondent(s)
GANGULY, J.
1. Leave granted.
1. The subject matter
of challenge in this case is the judgment and order dated 3rd January 2007 of
Rajasthan High Court in Civil Second Appeal No.63/1990, whereby the High Court
has dismissed the appeal.
1. The material facts
of the case are that on 4.3.1953 one Smt. Lado w/o Late Shri Meghraj mortgaged two
houses to the father of the present appellants for a sum of Rs.4000/-. After
the death of Smt. Lado, her adopted son Malchand on 2.12.1958 filed a suit,
being Suit No.156/58 before the Civil Judge Nagaur, Rajasthan inter alia
claiming therein that the mortgaged deed was executed by one Chhoga Lal and
Bajrang Lal by playing fraud upon his mother and thereby declaration was
claimed that the mortgage was null and void and the possession of the property
which was allegedly taken by Chhoga Lal and Bajrang Lal unauthorizedly may be
restored to him.
1. By a judgment and
order dated 23.12.1964, Civil Judge Nagaur, Rajasthan dismissed the suit inter
alia holding that Malchand, the plaintiff, failed to establish his adoption by
Meghraj. It was further held that Malchand is not entitled to file the suit.
1. Being aggrieved
thereby, Malchand filed an appeal being Appeal No.13/1965 before the District
Judge, Merta and the learned District Judge vide judgment and order dated
6.7.1967 allowed the appeal No.13/1965 holding inter alia that Malchand is the
adopted son of Meghraj and, therefore, the decree for possession of the two
houses described in para 3 of the plaint and mortgaged with Mrs. Lado was passed
in favour of Malchand. He was directed to pay Rs.4000/- and Rs.2064/- as
interest from the date of mortgage i.e. 4.3.1953 @ 9% per annum to the date of
Suit i.e. 28.11.1958 to the defendants, in all Rs.6064/- and further interest
at the rate of 6% per annum from the date of Suit till payment on the original
Principal amount of Rs.4000/-. It was also held that Malchand should be
entitled to recover possession of two mortgaged houses described in para 3 of
the plaint along with the Iron safe and Title deeds given to the defendants at
the time of mortgage by Smt. Lado. While deciding the appeal, the learned
District Judge also disposed of the cross-objection.
1. Thereafter, on
6.10.1968, the appellant filed an application being Civil Misc. Case No.6/1968
before the District Judge, Merta praying therein to specify some time for the
payment of decretal amount. To that application being Civil Misc. Case
No.6/1968, Malchand filed an opposition inter alia claiming that the suit filed
by him was for the possession of the property and not for the redemption of
mortgaged property and, therefore, the Court cannot specify any time limit for
the payment of decretal amount and the provisions of 12 years Limitation as
prescribed for execution of decree shall apply to this case.
1. The learned
District Judge, Merta vide an order dated 8.5.1969 dismissed the application of
the appellant in Civil Misc. Application No.6/1968 inter alia holding that if
the plaintiff i.e. Malchand comes with the execution of the decree, then it is
up to the judgment debtors to take suitable objections in the said execution
proceeding.
1. The appellant's
contention is that the period of limitation which according to him is 12 years
from the date of decree expired but Malchand neither paid the decretal amount
specified in the decree nor got the decree executed. Thereafter on 4.10.1982
which is about 15 years from the date of decree Kesrimal, an Attorney holder of
the Malchand, sold the said property to Om Prakash, the respondent herein. According
to the appellant, under the same Power of Attorney Malchand did not give any
authority to Kesrimal to sell the property.
1. The subsequent
purchaser Om Prakash, the respondent herein, filed an application on 12.10.1982
being Civil Misc. Case No.10/1984 under Order 34 Rule 8 of C.P.C before the
Civil Judge, Merta praying for a Final Decree for the redemption of mortgage.
The said claim of the respondent was contested by the appellants, inter alia,
on the ground that the original suit of Malchand was not for redemption of
mortgage but it was a suit for declaration that the mortgage is null and void
and for possession of the property. It was also contended by the appellant that
the original decree which was passed is the final decree and its execution is
barred by limitation and the person who has executed the sale deed in favour of
respondent herein has no authority to do so. Ultimately, the Civil Judge, Merta
by judgment and order dated 9.2.1988 allowed the Civil Misc. Application of the
respondent and passed a Final Decree and the following order was passed:- 5
"Therefore the instant Application filed by Om Prakash under order 34 Rule
8 is allowed and it is ordered that after the compliance of Decree dated
6.7.1967 by the Applicant, Final Decree with regards to Property in question
and Title deed be passed and on compliance of orders of Decree dated 6.7.1967,
non-applicants shall hand over the mortgaged property and title deed to the
Applicant."
10. Being aggrieved
thereby, the appellant filed an appeal being Appeal No.3/1988 before the First
Appellate Court and there also the learned District Judge, Nagaur dismissed the
appeal by judgment dated 9.7.1990 and passed the following order:- "This
Court is of the opinion that there are no circumstances to set aside the
Judgment dated 9.2.1988 and Decree dated 12.2.1988 passed by Civil Judge,
Merta. Hence the Appeal fails and hereby dismissed."
11. Thereupon the
appellants filed the Second Appeal No.63/1990 before the High Court challenging
the order passed by the District Judge.
12. By the judgment
under appeal the High Court dismissed the second appeal. In the said second
appeal the following questions of law were framed:- "(1) That Learned
Addl. District Judge was not correct in holding the Decree-dated 6.7.1967
passed by the Learned District Judge in Civil Appeal No.13/65 to be a
Preliminary Decree in the Suit for Redemption and it has further erred in
holding that an Application for passing a Final Decree for Redemption was
maintainable and it was within time.
(2) That Decree in
dispute dated 6.7.67 passed by Learned District Judge, Merta in Civil Appeal
No.13 of 1965 was a mere Decree for Possession on payment ascertained amount
mentioned therein, which has become barred by Limitation under Article 136 of
Limitation Act and was not capable of execution. Thus application under order
34 rule 8 was not maintainable and the Learned Judge has erred in holding that
was maintainable.
(3) That even if it
is consideration to be a Redemption Decree, it was Final Decree in Suit for
Redemption, which also had become barred by Limitation under Article 136 of
Limitation Act and thus Application under order 34 Rule 8 CPC was not
maintainable.
(4) That the Learned
Judge has misconstrued the alleged Power of Attorney executed in favour of
Kesrimal by Malchand and has erred in interpreting the work "to be"
"No authority was given to Kesrimal to sell the property in dispute or
Decree in dispute, and therefore, the alleged Sale Deed in favour of Respondent
No.1 Om Prakash is absolutely void."
13. The High Court in
its judgment under appeal dealt with all the questions and came to a finding,
and in our view rightly so, that the decree was passed in a case of recovery of
possession of mortgage property and that was specifically a decree for
redemption of mortgage property. The High Court also held that the said decree
attained finality as it was not challenged by the defendant judgment debtor.
The High Court noted that the present appellant only sought for early payment
of the decretal dues by moving an application before the First Appellate Court.
The High Court also came to a finding that the decree dated 7.6.1967 was a
preliminary decree and the plaintiff cannot be denied the opportunity of
getting the time for depositing the amount for redeeming the mortgage property.
The High Court rightly held that such right is given under Order 34 Rule 7 of
the Code.
It is clear that it
was open to the defendant to take steps for passing final decree in terms of
Rule 7 of Order 34 of the Code and that could have debarred the other side from
redeeming the mortgage property. The defendant did not do so and the decree
holder ultimately deposited the amount in the Trial Court before final decree
was passed.
The High Court also
held that the power of attorney executed by Malchand allowed the power of
attorney holder to have all powers including the authority to mortgage, sale or
gift the property for any or philanthropic purposes. However, the High Court
concluded by saying that the decree dated 6.7.1967 was a preliminary decree and
was passed for redemption of mortgage of the property and thereafter an
application for passing final decree was filed within the period of limitation.
13. We affirm the
view taken by the High Court.
The appeal is,
therefore, dismissed. No order as to costs.
.......................J.
(Dr. ARIJIT PASAYAT)
.......................J.
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