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                                                 NON-REPORTABLE

                 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)

                        J U D G M E N T

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

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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

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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

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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

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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:-

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       "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.

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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."

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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

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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. New Delhi                      (ASOK KUMAR GANGULY) March 30, 2009

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