GYASI RAM versus BRIJ BHUSHAN DAS AND ORS.

Citation: [1966] SUPP. 1 S.C.R. 109 · Decided: 30-03-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

• A 
' 
, 
B 
c 
D 
E 
F 
G 
H 
109 
GYASI RAM 
v. 
BRIJ BHUSHAN DAS AND ORS. 
March 30, 1966 
[K. N. WANCHOO, J.C. SHAH AND S.M. SIKRI, JJ.] 
Code 
of Civi! Procedure (Act 5 of 1908) O.XXXIV, r. 7(l)(c) 
(i) and (ii)-"Amount adjudged in respect of subsequent costs, char-
ges, expenses and interests"-Scope of. 
A preliminary decree was passed in the appellant's suit for re-
demption of a mortgage. The decree specified the amoun.ts due as 
principal and interest, provided for payment of future mterest 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 respon-
dent 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 decre-
tal 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 dismis-
Sed the appeal and confirmed the preliminary decree, but, the addi-
tional amount due for the period of stay on account of the undertak-
ing, was not included by the High Court in the preliminary decree. 
The appellant then applied for a final decree in his favour, after de-
positing 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 them was a shortaJge on the date of deposit-
though the shortage was made up after the judgment of the lower 
appellate court-onlv 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 de~ree may be passed in favour of the •P-
pellant. 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) (c) (i) and (ii) of the Civil Procedure Code. 
The appellant had carried out the terms of that decree by the deposit 
made by him and he had nothing to pay on account of $Ubsequent 
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 \Vords "in respect of subsequent costs, charges, expenses and in· 
terests." as it arose out of an independent order of the High Court 
HO 
8t'PREME COURT Rf.PORTS 
J.1966] "1'1'1'. H.~.K. 
and was only payable on account of the undertakmg for purposes of 
A • 
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 CJ. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 959 of 
B 
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, So/iritor-General, Rameshwar Nath. S. N. A11dley 
P. L. Volzra and Mahinde1 .'Varain. for the appellant. 
c 
A. K. Sen and R. Gopalakrishna11, for respondent no. I. 
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 Cmirt and arises in the 
following circumstances. The appellant brought a suit for redemp-
tion of certain mortgaged property. A preliminary decree was pass-
D 
ed 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

Excerpt shown. Read the full judgment & AI analysis in Lexace.