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PETITIONER: GYASI RAM

       Vs.

RESPONDENT: BRIJ BHUSHAN DAS AND ORS.

DATE OF JUDGMENT: 30/03/1966

BENCH:

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

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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].

JUDGMENT: 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

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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

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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 adjudgement 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

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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. 114