ACHALDAS DURGAJI OSWAL (DEAD) THROUGH LRS. versus RAMVILAS GANGABISAN HEDA (DEAD) THROUGH LRS. AND ORS.

Citation: [2003] 1 S.C.R. 340 · Decided: 15-01-2003 · Supreme Court of India · Bench: V.N. KHARE · Disposal: Dismissed

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Judgment (excerpt)

A 
ACHALDAS DURGAJI OSWAL (DEAD) THROUGH LRS. 
v. 
~ 
RAMVILAS GANGABISAN HEDA (DEAD) THROUGH LRS. AND 
ORS. 
·; 
B 
.•. 
JANUARY IS, 2003 
[V.N. KHARE, CJ, S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] 
~ 
Code o/Civil Procedure, 1908-0rder XXXIV Rules 7 and 8-Limitation 
c Act, 1963-Articles 61 and 137-Transfer of Property Act, 1882-Sections 
58(d) cmd 60-Usufructuary Mortgage-Redemption of-Suit-Preliminary 
decree directing deposit of money within fvced time but the same not deposited-
Rejection of application for extension of time-Deposit of amount after seeking 
permission-Application for preparation of final decree within three years 
from date of deposit-Trial Court dismissing the same as barred by limitation-
D High Court allowing the revision-On appeal held, in preliminary decree in 
such suit court may fvc time for payment of amount but default in depositing 
the amount cannot debar him from the right to redeem the mortgage property. 
Respondent No.I-mortgagor filed a suit for redemption of 
usufructuary mortgage. Trial court passed a preliminary decree and 
E directed respondent No.I to deposit certain sum within the stipulated time. 
Respondent No.I did not deposit the sum and filed an application for 
extension of time which was rejected. He did not challenge the order but 
obtained permission to deposit the money and complied with the same. 
Respondent No.I then filed an application for preparation of a final decree 
F within three years from the date of depositing the amount. Civil Judge 
dismissed the application as it was barred by limitation. Aggrieved 
respondent No.1 filed revision application. High Court allowed the same. 
Hence the present appeal. 
Appellant contended that having regard to the plain language used 
G in Order XXXIV Rule 8 C.P.C. read with Article 137 of Limitation Act, 
there cannot be any doubt whatsoever that the period of limitation as 
prescribed therein shall apply in an application for preparation of a firial 
,..i..-
decree in a suit for redemption of usufructuary mortgage and the 
provisions of Limitation Act are applicable in such a suit independent of 
H 
the provisions of C.P.C. 
340 
A.D. OSWAL (DEAD) v. R.G. HEDA (DEAD) 
. 341 
Respondents contended that the right of a mortgagor to redeem the A 
mortgage would continue unless the same is extinguished either by a decree 
passed by court of law or by an agreement of parties; and that the 
application for preparation of a final decree was filed within three years 
from the date of making the deposit and thus the same was not barred by 
limitation. 
B 
Dismissing the appeal, the Court 
HELD: 1.1. The statutory provisions, are required to he construed 
having regard to the redeeming features of ususfructuary mortgage, 
namely, there is a delivery of possession to the mortgagee, he is to retain 
possession until repayment of money and to receive rents and profits or C 
part thereof in lieu of interest, or in payment of mortgage money, or partly 
in lieu of interest and partly in payment of mortgage money, there is 
redemption when the amount due is personally paid or is discharged by 
rents or profits received and there is no remedy by sale or foreclosure. 
(352-C, DI D 
1.2. Order XXXIV Rule 7(2) of CPC empowers the court to extend 
the time fixed for payment. Rule 8 of Order XXXIV provides for final 
decree in redemption suit. Order XXXIV Rules 7 and 8 do not confer any 
right upon the usufructuary mortgagee to apply for final decree which is 
conferred on mortgagee on other types of mortgages. By reason of Rule 8 E 
of Order XXXIV, a mortgagor is entitled to make •n application for final 
decree at any time before a final decree debarring the plaintiff from all 
right to redeem the mortgaged property has been passed or before the 
confirmation of a sale held in pursuance of a final decree passed under 
sub-rule (3) of this rule. No such application is again contemplated at the 
instance of the usufructuary mortgagee. By reason of Order XXXIV Rule F 
8(1), a right of redemption is conferred upon the mortgagor of a 
usufructuary mortgage. Such a provision has been made evidently having 
regard to the right of redemption of a mortgagor in terms of Section 60 
of the Transfer of Property Act which is a statutory right, the same can 
be taken away only in terms of the proviso appended to Section 60 of the G 
Act and further having regard to the fact that a usufructuary mortgagee 
would be entitled to possess the property in questi

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