Ram Rao (Decd.) Legal Representatives Bhimsen Rao and others vs Bhim Rao

This is a second appeal by the plaintiff which arises out of a suit filed by him for the redemption of the mortgage and possession stating that he mortgaged the lands bearing survey Nos. 114 to 119 situated at Bolewad Maqta, taluqa Gulberga with the defendant''s father, Chandappa, through a registered mortgage-deed dated 13th Dai 1329F., with a stipulation that the mortgage amount would be paid in four yearly instalments failing which the mortgagee would be entitled to take possession of the mortgaged lands & get the patta transferred in his name; that on 12th Ardibehist 1332F., the mortgagee filed a suit for foreclosure & possession in which a preliminary decree was passed directing the mortgagor to pay the mortgage amount within six months in default the mortgagee would be entitled to possession and pattedari according to the terms of the contract. The plaintiff-mortgagor failed to pay the mortgage amount within the time prescribed by the decree and on the petition of the defendant (mortgagee) & without any notice to the plaintiff, the preliminary decree was made final.

The defendant''s father did not apply to the Court for possession but he came into possession having agreed that patta would remain in the name of the plaintiff and the possession of the said lands would be returned whenever the plaintiff demanded the same. Accordingly the defendant''s father and after him the defendant remained in possession; that in the decree there is no order of the Court that the right of the mortgagor to redeem is extinguished and when the plaintiff asked the defendant to take the mortgage amount and redeem the mortgage, he refused hence the plaintiff is entitled to a decree.

The defendant in his written statement admitting the passing of the preliminary and the final decree alleged that after the final decree he has become an absolute owner of the property and that the plaintiff is not entitled to the relief sought. A legal objection was also raised that the suit is time-barred.

On these pleadings the trial Court framed seven issues. Parties filed documentary evidence. The Court of first instance without recording any oral evidence and relying on the documentary evidence dismissed the suit having held that after the final decree for foreclosure the plaintiff is not entitled to the relief sought. Aggrieved by this the plaintiff went in appeal which has been dismissed hence this second appeal. During the pendency of the suit in the trial Court the plaintiff filed a petition on 7th Sherewar 1357F., for the amendment of the decree which has been dismissed. Aggrieved by this the plaintiff has filed a revision petition No. 3/4 of 1953. On 8th Thir 1358F., the plaintiff filed an application depositing the mortgage amount and requested the Court to redeem the mortgage. This application was dismissed. A miscellaneous appeal was filed from the order of dismissal which was also dismissed. Against this dismissal of the appeal the appellant has filed another revision petition No. 4/4 of 1953-54. Thus the appeal and the two revision petitions have come up for final disposal. We have heard the arguments of the learned advocates of the parties.

In the appeal it is contended on behalf of the appellant that the Courts below have erred in holding that the plaintiff is not entitled to any relief when the decree of 3rd Farwardi 1334F., has not extinguished the right of redemption. It is further contended that the right of redemption can only be lost either by an order of the Court or by the acts of the parties. Reliance is placed on the cases of -- AIR 1934 205 (Privy Council) -- ''Subba Rao v. Matapalli Raju'', AIR 1950 FC 1 (B) and 40 Deccan LR 63 (C).

On behalf of the respondent it is conceded that the right of redemption can be lost either by the order of the Court or by the acts of the parties, but it is contended that though the decree of 3rd Farwardi 1334F., has not clearly directed that the right of redemption is extinguished, still the plaintiff cannot get any relief as he has lost that right by his acquiescence inasmuch as after the passing of the final decree the mortgagee came into possession and the mortgagor allowed him to remain in possession of the property for over 25 years and this acquiescence on his part creates an estoppel against him and he has lost his right of redemption. Reliance was placed on the cases of Vasantrao Govindrao Prabhakar Vs. Nanabhai Sadanand, -- ''Ratnakar Gountia v. Chamra Satpasty'', AIR 1919 Pat 497 (E); and -- ''Ramaswami Reddy v. Rangamannar Iyengar'', AIR 1914 Mad 365 (F).

We have given careful consideration to the arguments of the learned advocates of the parties. ) We are of the opinion that there is sufficient force in the arguments of the appellant. Sub-r. (2) of O. 34, R. 3 provides that:

Where payment in accordance with sub-r. (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all rights to redeem the mortgage property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property.

It is admitted by the learned advocate for the respondent that in the final decree there is no order of the Court to the effect that the mortgagor''s right of redemption is extinguished. In the case reported in ''40 Deccan LR 63 (C)'', it has been laid down by a Full Bench of five Judges of this Court that the right of redemption could only be extinguished by the order of the Court or the acts 61 the parties. Similar view is expressed in the case of -- ''Thota China Subba Rao v. Matta Palli Raju'', AIR 1950 FC 1 (B). The learned advocate for the respondent concedes this point but urges that as he has been in possession for twenty-five years and the mortgagor did not object and allowed him to remain in possession, that would amount to his acquiescence and he would be stopped from raising any objection. We do not in toto agree with this, contention of the respondent.

The right of redemption is an incident of subsisting mortgage and it subsists as long as a mortgage itself subsists. It is alleged to have been extinguished by a decree; a decree in accordance with the form prescribed for the purpose should be passed, and unless equity of redemption is so extinguished, the mortgagor has a right to redeem the mortgage and a second suit for redemption cannot be said to be barred. Admittedly in the case before us there is no question of the extinguishment of the equity of redemption by the order of the Court. What is contended is that after the preliminary decree the defendant got possession and the mortgagor allowed him to remain in possession for over 25 years. This act of the mortgagor amounts to acquiescence and he would be stopped from raising any objection. As discussed above the right of redemption also can be lost by the act of the parties.

Now we have to see whether allowing the mortgagee to remain in possession is such an act of the mortgagor which would amount to the extinguishment of the equity of redemption. In the Full Bench case of this Court reported in ''40 Deccan LR 63 (C)'', similar question had arisen. In that case also a preliminary decree was passed and no steps were taken to make the decree final, but the mortgagee continued in possession for 25 years and when the mortgagor filed a suit for redemption it was contended on behalf of the mortgagee that the mortgagor''s right of equity of redemption was lost. It has been laid down by their Lordships that the right of redemption subsists and it is not lost In the above Full Bench case the case of '' Vasantrao Govindrao Prabhakar Vs. Nanabhai Sadanand, , has been considered but their lordships have not accepted the view taken by the Bombay High Court. In view of the decision of the Full Bench, we do not wish to go into a detailed discussion as to whether allowing the mortgagee to remain in possession would amount to such an act as to extinguish the equity of redemption of the mortgagor. It is contended on behalf of the respondent that the Full Bench has not clearly decided this point. We do not agree with this contention. The very same matter was before the Full Bench and it has decided it.

In the present case both the Courts have held that the right of the mortgagor has been extinguished. As discussed above, we do not agree with this view of the Courts below. In our opinion the right of the mortgagor to redeem the mortgage still subsists. In the result this case will have to be remanded to the Court below for necessary action.

After this we turn to the Revision Petitions. So far as the revision petition No. 3/4 of 53 is concerned and which relates to the amendment of the decree, we agree with the opinion of the Courts below that there is no clerical error or mistake in the decree that could be amended. In the result this revision petition would stand dismissed.

As regards the revision petition No. 4/4/53 we are of the opinion that tins case also has to be remanded to the trial Court for disposal on the merits. This revision arises out of a petition filed by the plaintiff depositing the mortgage amount and requesting the Court to redeem the mortgage. The trial Court dismissed this petition having held that as the plaintiff''s suit for redemption of the mortgage has been dismissed, this petition is not tenable. On appeal filed by the plaintiff that order was confirmed against which is this revision. In the appeal of the plaintiff which arose out of a suit for redemption we have remanded the case to the trial Court after setting aside the judgment and decree of the appellate Court having come to the conclusion that the right of the mortgagor to redeem the mortgage is still subsisting. In view of this order, this revision petition will have to be allowed and the case remanded to the trial Court for necessary action.

Appeal and the revision petition No. 4/4/53 are both allowed and the case is remanded to the trial Court as per directions above. Revision petition No. 3/4/53, is, therefore, dismissed. This judgment shall govern the other connected petitions. Costs to abide the result of the proceedings in the Court below.