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PETITIONER: MOHD. ABDUL KHADER MOHDKASTIM & ANOTHER

       Vs.

RESPONDENT: PAREETHIJ KUNJU SAYEDAHAMMED & OTHERS

DATE OF JUDGMENT:       05/11/1996

BENCH: M.M. PUNCHNI, SUJATA V. MANOHAR

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The suit  property was  under a  usufructuary mortgage. The appellant was the mortgagor thereof. The mortgage money was Rs.18,000/-.  In the  suit for  redemption instituted by the  appellant   redemption  was   sought  on   payment   of Rs.18,000/-. On  November 22,1960  the trial  court passed a preliminary decree in the following terms:      "In the  result, the  plaintiff  is      given  a   preliminary  decree  for      redemption of  the plaint  property      on deposit  of the  mortgage amount      and value  of   improvements  ,  if      any, that may be fixed in the final      decree. The plaintiff is allowed to      recover mesne  profits  at  the  of      Rs.200/- per  mensem from  the date      of deposit of the redemption price.      First defendant  will apply for the      issue of a commission to assess the      value  of   improvements.  He  will      apply within  one month  from  this      date. The  parties will  bear their      costs"      The said decree was confirmed in appeal on 16.11.1965. It was claimed that the decree of the trial court has merged therein  and  therefore  the  limitation  for  all  purposes started from  the date  of the  appellate court’s order. The appellant claimed  that the preliminary decree was deficient in as  much as  no time  had been  fixed for  the  appellant depositing the  redemption money  and that  in the nature of things incomplete  since the  extent of  the  claim  of  the mortgageerespondent relating  to improvements  had yet to be ascertained. On  that basis  it was  claimed that  since the decree had  not determined  the final  amount payable  as in terms of  Order 34  Rule 7  the decree could not be called a preliminary  decree   at  all  and  was  rather  a  decision preperatory to  a preliminary decree. Therefore there was no bar for the Court to pass another preliminary decree. Taking shelter under these arguments time Was sought from the Court within  which  the  redemption  price  could  be  termed  as

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payable. The  trial  court  dismissed  the  application  for ascertainment of  time and  the High  Court  confirmed  that view, which has given rise to this appeal.      The terms  of  the  decree  ex  facie  are  clear.  Its direction above  extracted can  be divided into three parts. Firstly, the  plaintiff (the  appellant herein)  is given  a preliminary decree for redemption of the property on deposit of  the   mortgage  amount.   Secondly,  on   the  appellant depositing the  redemption price,  he would  ’be entitled to recover mense  profits at  the rate  of Rs.200/-  per mensem till possession  of the  mortgaged property was delivered to him. Lastly  if there  be  any  improvement  caused  by  the dependent-mortgagee then  he was  required to  lay  a  claim within the  time  fixed  and  apply  for  appointment  of  a commission to  assess the  value of  the improvement. And if there be any  improvement and its value ascertained then the same was  payable by  theappellant at the time of passing of the final  decree.  Evidently,  all  these  obligations  and counter-obligations  were   separate  in   nature  and   the plaintiff-appellant was  required on his part to deposit the redemption money which was equivalent to the mortgage money, ascertained at Rs.18,OOO/- in the plaint, payable forthwith, and in  any case  within the  statutory period of six months provided under  Order 34  Rule 7  C.P.C. The Court instantly may have omitted to prescribe the time for payment under the preliminary decree but that time in no case could exceed six months from  the date  of the  passing of the decree. If the Court had  failed to  mention the period then the plaintiff- appellant was  all the  same required to make payment within the permissible  period of six months unless extended by the Court for  reasonable cause  shown. Here  no application was made for  extension and  for a  good cause.  Rather  it  was projected that  the time  for payment  had  not  arisen  and unless the  claim for improvement stood settled (which claim was never  preferred)  the  occasion  for  payment  had  not arisen. We  think that the appellant was in error in reading the terms  of decree in this manner and therefore has to his neglect. The terms of the decree say otherwise.      For the  foregoing reasons  we find  no merit  in  this appeal and the same is accordingly dismissed.