GYARSI BAI AND OTHERS versus DHANSUKH LAL AND OTHERS

Citation: [1965] 2 S.C.R. 154 · Decided: 18-11-1964 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Order modified

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Judgment (excerpt)

154 
GYARSI BAI AND OTHERS 
v. 
DHANSUKH LAL AND OTHERS 
November 18, 1964 
[K. SUBBA RAo, RAGHUBAR DAYAL AND N. RAJAGOPALA 
AYYANGAR JJ.J 
Mortgage-Suit for enforcement of Mortgage with possession-Preli-
minary decree declaring amount due under mortgage without asking mort· 
gagee to account for profits-'--Mortgagee's liability to account for period 
before preliminary decree, and after decree-Code of Civil Procedure (Act 
5 of 1908, 0. 34, rr. 4 & 2-Transfir of Property Act, s. 76(h)-Ettoppe/ 
-Conditions to be satisfied. 
A mortgagee in possession of the mortgaged property filed a suit for 
enforcement of the mortgage. As provided in 0-34, rr. 4 and 2 the trial 
court framed a preliminary decree in Form No. 5A of the Appendix D 
to the First Schedule of the Code of Civil Procedure declaring the amount 
due under the mortgage. This was done without debiting the profits of 
the property realised by the mortgagee in the manner contemplated by 
s. 76 Transfer of Property Act. 
After the decree was passed the mort-
gagors prayed that the mortgagee be asked to render accounts. 
Their 
application was rejected by the Trial Court, but the High Court in 
revision remanded the case and directed the trial court to declare the 
amount due under the mortgage after taking accounts from the mortgagee. 
The mortgagee's legal representatives (the present appellants) appealed 
to the Supreme Court by special leave. 
The appellants contended that since 
the preliminary 
decree 
had 
finally dc!ormined the rights of the parties no claim for subsequent 
accounting could arise. 
The respondents (mortgagors) on the other hand 
contended that the appellants had withdrawn the amount deposited in 
court in part satisfaction of the d~cree after having given an assurance that 
they would render accounts of the profits, and therefore the appellants 
were stopped from denying their liability to account. 
HELD : (i) In a suit on a mortgage for sale the court may either 
order an account to be taken of what is due to the plaintiff at the 'date 
of the preliminary decree, or it may declare the amount so due on that 
date. 
In the latter case the .decree will be made in Form No. 5A in 
Appendix D to the First Schedu1e. 
In a case where a decree is made 
in Form No. 5A it is the duty of the Court to ascertain the amount due 
to the mortgagee at the date of the preliminary decree. The amount due 
cannot be declared unless the net profits realised by the mortgagee from 
the property are ascertained. 
The ascertainment of the net profits is 
therefore a matter directly and substantially in is.Sue up to the date of 
the pre1iminary decree. 
If the requisite pJea is not raised and the court 
does not in framing the preliminary decree take into account the net 
profits a subsequent plea for rendition of' accounts by mortgagee would 
be barred on the principle of res judicata. 
A preliminary decree is 
final in resoect of disputes that should have been raised before it was 
made. 
[159 D-160 DJ 
In the present case therefore the mortgagor could not claim rendition 
-0f accounts for the period prior to the preliminary decree. [160 DJ 
A 
B 
c 
D 
E 
F 
G 
H 
• 
A 
B 
GYARSI BAI v. DHANSUKH LAL (Subba Rao, J.) 
155 
(ii) The same however cannot be said of the net receipts realized 
by the mortgagee subsequent to the preliminary decree as no dispute about 
them could have been raised before it was made. 
As a suit notwith-
standing tl1e preliminary decree 
continue till the 
passing of the final 
decree and therefore any payment made by the judgment-debtor to the 
decree-holder would go in deduction of his mortgagee liability. 
On the 
same analogy the net receipts statutorily debited to the mortgagee would 
equally be taken into consideration in fixing the mortgagor's ultimate 
liability. 
[160 B-162 B; 162 HJ 
Case law discussed. 
(iii) There can be no estoppel unleso the penon to whom a represen-
tation is. made acts on that representation to his detriment. 
By depositing 
the decretal amount the respondents had only discharged their legal lia-
bility under the decree and this cannot in any sense of the term be des-
cribed as detrimental to them. [166 D-G] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 257 of 
1963. 
Appeal by special leave from the judgment and order dated 
April 5th 1961 of the Rajasthan High Court in S. B. Civil Revision 
D 
No. 181 of 1956. 
E 
F 
G 
H 
B. D. Sharma, for the appellants. 
A. V. Viswanatha Sastri, Rameshwar Nath, S. N

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