Gnanambal Ammal vs Ayyarswami being minor represented by guardian and father Subbaratna Gurukkal and others

Mack, J.—The appellant is a decree-holder. The plaintiffs obtained what is described as a preliminary decree for redemption in O.S. No.

338 of 1950 on 18th December 1951 of a usufructuary mortgage dated 23rd April 1947 in respect of 3.36 acres of land. The mortgage was for

Rs. 3000. The preliminary decree for redemption now under appeal was in Form No. 7-A under O. 34, R. 7, C.P.C., and it declared that the sum

of Rs. 3025-4-0 was due by the plaintiffs to the first defendant on the mortgage and that the plaintiffs should pay this sum into Court before 18th

March 1952 or any later date which may be fixed by the Court, in which event the first defendant was to deliver quiet and peaceful possession to

the plaintiffs. There was another clause in the decree that the plaintiffs should pay the first defendant a sum of Rs. 300 on account of the costs of

improvements made to the suit property. The decree contained clauses making the usual provision in a preliminary decree for redemption that if the

plaintiffs did not deposit the amount by the said dale, the defendant shall be at liberty to apply for a final decree for sale of the mortgage property.

This decree was passed on 18th December 1951. On 19th January 1952 the plaintiffs made the deposit required and applied for delivery which

was ordered on 23rd January 1952. The plaintiffs actually took delivery on 24th January 1952. On 30th January 1952 the mortgagee filed an

application which is now under appeal for redelivery on the ground that delivery should not have been ordered without a final decree having been

passed. The District Munsif dismissed the application holding that as the amounts mentioned in the decree had been deposited, the plaintiffs were

within their rights in asking for delivery of possession. In appeal, the learned District Judge upheld the contention of the mortgagee that this was a

preliminary decree for redemption in entirely and that the plaintiffs were not entitled to any delivery of possession without obtaining a final decree.

An allegation made in support of the application was that of the time of the delivery there were valuable crops of turmeric, paddy and coconuts on

the land which the decree-holder look away without giving an opportunity to the mortgagee to remove them or to make any suitable claims as

regards them. The District Judge ordered redelivery, holding that the delivery of possession was, therefore, not legal, and in addition, directed the

District Munsif to ascertain the damages sustained by the mortgagee as a result of the plaintiffs obtaining such delivery. This order was passed on

6th August 1952. The plaintiff-appellant obtained a stay of this order pending disposal of the present appeal and is still in possession.

The learned District Judge does not appear to me correct in his interpretation of this decree and treating it entirely as a preliminary decree, quite

incapable of any execution. The decree in this case finally determines the amount payable by the mortgagor, fixes a particular time within which it

should be paid and provides for peaceful possession being handed over in the event of the amount declared in the decree being deposited in Court.

The learned Advocate for the mortgagee relied on O. 34, R. 8 C P.C. which requires that

where before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed... the plaintiff makes payment

into Court of all amounts due from him under Sub-R. (1) of R. 7, the Court shall, on application made by the plaintiff in this behalf, pass a final

decree, or, if such decree has been passed, an order inter alia ordering the defendant to put the plaintiff in possession.

This provision clearly contemplates the possibility of a final decree for possession having previously been passed, that is, precisely such a decree as

the one we are considering. Form No. 7-A in Appendix D designed to cover a variety of cases adopted in the present decree, it is true, is

described as a preliminary decree for redemption, because on default of payment by the mortgagor it is open also to the mortgagee to ask for a

decree for sale being passed. From that standpoint, the present decree is also preliminary in the sense that if the plaintiff defaults in payment of the

sum prescribed by the appointed date, it provides for the mortgagee applying for a final decree for sale. But where a decree of this kind finally

determines the sum which is payable by the plaintiff to the mortgagee and specifically provides for the delivery of peaceful possession on deposit of

that money into Court, it cannot be said that the plaintiff is not entitled to an order for delivery on the so called preliminary decree itself, without

going through the formality of applying first for a final decree. I here may be clauses in all preliminary decrees which are immediately executable,

the decree being called preliminary, because it is not a final determination of all rights as between the parties. I am quite unable to see any ground

on which it can be said that the delivery ordered by the District Munsif and effected through order of Court is illegal. Nor would there be any

justification for me to direct redelivery now, and then refer the plaintiff appellant to an application for a formal final decree before he can in

execution of it take delivery of the property to which he became entitled in 1952.

There, however, appears to me to be equitable substance in the complaint of the mortgagee that the plaintiffs have taken delivery of the property

with some standing crops which he had cultivated, the fruits of which he is entitled to as a usufructuary mortgagee. It was just at harvest time that

the delivery was effected. The learned Advocate for the plaintiff decree-holder does not oppose an enquiry by the District Munsif into the value of

the standing crops at the time of the delivery. The defendant mortgagee will be entitled to recovery from the plaintiff the value of the crops so

determined.

In paragraph 6 of this decree the plaintiffs were ordered to pay the first defendant, i.e., the mortgagee a sum of Rs. 300 on account of the

improvements made to the suit property. Unfortunately, neither of the learned Advocates can say whether this sum of Rs. 3,00 was also deposited

into Court along with Rs. 3025-4 0 which included costs. I presume that this sum was also deposited. If it has not been paid, it can be recovered

by the first defendant in execution of Cl. 1. 6 of the decree.

The District Judge''s order directing redelivery is set aside and the order of the District Munsif restored. Taking all circumstances into

consideration, I direct the parties to bear their own costs throughout.