MHADAGONDA RAMGONDA PATIL & ORS. versus SHRIPAL BALWANT RAINADE & ORS.

Citation: [1988] 3 S.C.R. 689 · Decided: 22-04-1988 · Supreme Court of India · Bench: K.N. SINGH · Disposal: Dismissed
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Judgment (excerpt)

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MHADAGONDA RAMGONDA PATIL & ORS. 
A 
v. 
SHRIPAL.BALWANT RAINADE & ORS. 
APRIL 22, 1988 
[M.M. DUTT, K.N. SINGH AND M.H. KANIA, _JJ.) 
B 
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Code of Civil Procedure-Challenging right of mortgago; to 
redeem mortgage-When right of redemption is extinguished-Under 
). 
provisions of Order XXXIV of-Application of rule of Damdupat to 
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mortgages~When. 
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A suit for redemption of two mortgages was filed in the Court of 
Subordinate Judge by the respondents, the successors-in-interest of the 
original mortgages. A preliminary decree for redemption was passed 
with a declaration of the amount due from the mortgagors to the mort-
gagee. The mortgagors were directed to pay the amount within six 
months to get the property redeemed, failing which the mortgagee 
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could apply for a final decree for sale. On failure of the mortgagors to 
make the payment, a final decree for sale was passed. 
Although the final decree for sale of the mortgaged property had 
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been passed, the mortgagee did not execute the decree which became 
time-barred. The mortgagee and after him his heirs and legal represen-
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tatives, however, continued to he in possession of the mortgaged 
property. 
The respondents filed a second suit for redemption of the mort-
gages in the Court of the Joint Civil Judge against the appellants-the 
~. heirs and legal representatives of the original mortgagee. The Joint 
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Civil Judge came to the fmdings that notwithstanding the preliminary 
decree or final decree passed in the previous suit, the mortgagors' right 
of redemption was not extinguished and the respondents were entitled 
to redeem the mortgages. The plea of protected tenancy of the appel-
lants was negatived by the Judge. The Joint Civil Judge held that the 
respondents were entitled to redeem the mortgages on payment to the 
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appellants of a sum including Interest calculated by application of the 
rule of Damdupat, and a preliminary decree for redemption was pas-
sed under Order XXXIV, rule .7 of the Code of Civil Procedure in 
respect of both the mortgages, with directions regarding payment of the 
amount and delivery of actual possession of the mortgaged property, etc 
to the respondents as also for a final decree for foreclosure in case of 
H. 
default of payment, etc. 
689 
690 
SUPREME COURT REPORTS 
[1988] 3 S.C.R. 
A 
Aggrieved by the judgment of the Joint Civil Judge, the appel-
lants preferred an appeal to the High Court. The High Court dismissed 
the appeal with a modification. Aggrieved by the decision of High Court 
appellants appealed to this Court for relief by Special leave. 
The appellants challenged the rmdings of the High Court as to the 
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maintainability of the second suit for redemption out of which this 
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appeal arose and the applicability of the rule ofDamdupat. 
Dismissing'the appeal, the Court, 
HELD: Sec. 60 of the Transfer of Property Act confers a right of 
redemption on the mortgagor. The right of redemption will be exting-
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uished (1) by the act of the parties or (2) by the decree of a Court. The 
Court was concerued in this case with the question whether by the 
'in'eliminary decri,,, or final decree passed in the earlier suit, the right of 
tlie respondents io redeem the mortgages had been extinguished. The 
decree referred 'to in the proviso to section 60 of the Transfer of 
D Pri>pertj Act is a· final decree in a suit for foreclosure, as provided in 
suh~rille \2) of Rule 3 of Order XXXIV and a final decree in a redemp-
tion suit as provided in Order XXXIV, Rule 8(3)(a) of the Code of Civil 
Procedure. Sub-rule (2) of rule 3 inter alia provides that where payment 
in accordance with Sub-rule (1) has not been m~de, the Court shall on 
an application made hy- the plaintiff in this-behalf, pass a final decree 
E declaring that the defendant and all persons claiming through or under 
him are debarred from all right to redeem the mortgaged property 
and also, if necessary, ordering the defendant to put the plaintiff in 
possession of the_ property, Thus, in a rmal decree in a suit for fore-
closure on the failure of the defendant to pay all amounts due, the 
extinguishment of the right of redemption has to be specifically 
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declared. Again,. in a final decree in a suit for redemption of mortgage 
by conditional sale or for redemption of an anomalous mortgage, the 
extinguishment of the ·right .. of redemption has to be specifically 
declared; as provided in clause (a) of sub-rule (3) of Rule 8 of O
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