MOHD. ABDUL KHADER MOHD KASTIM AND ANR. versus PAREETHIJ KUNJU SAYED AHAMMED AND ORS.

Citation: [1996] SUPP. 8 S.C.R. 476 · Decided: 05-11-1996 · Supreme Court of India · Bench: M.M. PUNCHHI, SUJATA V. MANOHAR · Disposal: Dismissed
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Judgment (excerpt)

A 
MOHD. ABDUL KHADER MOHD KASTIM AND ANR. 
v. 
PAREETHIJ KUNJU SA YEO AHAMMED AND ORS. 
NOVEMBER 5, 1996 
B 
[M.M. PUNCHHT AND MRS. SUJATA V. MANOHAR, JJ.] 
Code of Civil Procedure, I 908 : 
Order 34, Rule 7-Preliminarydecree in redemption suit-Compliance 
C with terms of-Limitation-Court not fixing any time limit for deposit of 
redemption money-Held, plaintiff was required to deposit the redemption 
money, payable forthwith and, in any case, within the statutory period of 
six months-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 passing the decree-Plaintiff has to suffer for 
D his neglect. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7831 of 
1995. 
From the Judgment and Order dated 1.9.88 of the Kerala High Court 
E in C.R.P. No.133 of 1983. 
G. Vishwanatha Iyer and A. Raymond, (S. Balakrishnan) for M.K.D. 
Namboodiri for the Appellants. 
F 
C. Seetharamaih, (Ramesh Babu M.R.,) for M.A. Firoz for the 
Respondents. 
The following Order of the Court was delivered : 
G 
The suit property was under a usufructuary mortgage. The appellant 
was the mortgagor thereof. The mortgage money was Rs. 18000. 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: 
H 
"In the result, the plaintiff is given a preliminary decree for 
476 
MOHD. ABDUL MOHD. :<ASTIM v. PAREETHIJ KUN JU SAYED AHAMMED 
4 77 
redemption of the plaint property on deposit of the mortgage · A 
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 rate 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 B 
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 C 
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 mortgagee-respondent 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 D 
a decision preparatory 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 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. 
E 
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 F 
price, he would be entitled to recover mesne 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-
mortgaged 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 G 
then the same was payable by the appellant 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.18,000 in the plaint, payable forthwith, and in 
any case within the statutory period of six months provided under Order H 
478 
SUPREME COURT REPORTS J 1996 J SUPP. 8 S.C.R. 
A 34 Rule 7 C.P.C. The Court instantly may have omitted to prescribe the 
t
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