GANGULY, J.
1. Leave granted.
1. The subject matter of challenge in this case is
the judgment and order dated 3rd January 2007 of
Rajasthan High Court in Civil Second Appeal No.63/1990,
whereby the High Court has dismissed the appeal.
1. The material facts of the case are that on
4.3.1953 one Smt. Lado w/o Late Shri Meghraj mortgaged
two houses to the father of the present appellants for
a sum of Rs.4000/-. After the death of Smt. Lado, her
adopted son Malchand on 2.12.1958 filed a suit, being
Suit No.156/58 before the Civil Judge Nagaur, Rajasthan
inter alia claiming therein that the mortgaged deed was
executed by one Chhoga Lal and Bajrang Lal by playing
fraud upon his mother and thereby declaration was
claimed that the mortgage was null and void and the
possession of the property which was allegedly taken by
Chhoga Lal and Bajrang Lal unauthorizedly may be
restored to him.
1. By a judgment and order dated 23.12.1964, Civil
Judge Nagaur, Rajasthan dismissed the suit inter alia
holding that Malchand, the plaintiff, failed to
establish his adoption by Meghraj. It was further held
that Malchand is not entitled to file the suit.
1. Being aggrieved thereby, Malchand filed an appeal
being Appeal No.13/1965 before the District Judge,
Merta and the learned District Judge vide judgment and
order dated 6.7.1967 allowed the appeal No.13/1965
holding inter alia that Malchand is the adopted son of
Meghraj and, therefore, the decree for possession of
the two houses described in para 3 of the plaint and
mortgaged with Mrs. Lado was passed in favour of
Malchand. He was directed to pay Rs.4000/- and
Rs.2064/- as interest from the date of mortgage i.e.
4.3.1953 @ 9% per annum to the date of Suit i.e.
28.11.1958 to the defendants, in all Rs.6064/- and
further interest at the rate of 6% per annum from the
date of Suit till payment on the original Principal
amount of Rs.4000/-. It was also held that Malchand
should be entitled to recover possession of two
mortgaged houses described in para 3 of the plaint
along with the Iron safe and Title deeds given to the
defendants at the time of mortgage by Smt. Lado. While
deciding the appeal, the learned District Judge also
disposed of the cross-objection.
1. Thereafter, on 6.10.1968, the appellant filed an
application being Civil Misc. Case No.6/1968 before the
District Judge, Merta praying therein to specify some
time for the payment of decretal amount. To that
application being Civil Misc. Case No.6/1968, Malchand
filed an opposition inter alia claiming that the suit
filed by him was for the possession of the property and
not for the redemption of mortgaged property and,
therefore, the Court cannot specify any time limit for
the payment of decretal amount and the provisions of 12
years Limitation as prescribed for execution of decree
shall apply to this case.
1. The learned District Judge, Merta vide an order
dated 8.5.1969 dismissed the application of the
appellant in Civil Misc. Application No.6/1968 inter
alia holding that if the plaintiff i.e. Malchand comes
with the execution of the decree, then it is up to the
judgment debtors to take suitable objections in the
said execution proceeding.
1. The appellant’s contention is that the period of
limitation which according to him is 12 years from the
date of decree expired but Malchand neither paid the
decretal amount specified in the decree nor got the
decree executed. Thereafter on 4.10.1982 which is
about 15 years from the date of decree Kesrimal, an
Attorney holder of the Malchand, sold the said property
to Om Prakash, the respondent herein. According to the
appellant, under the same Power of Attorney Malchand
did not give any authority to Kesrimal to sell the
property.
1. The subsequent purchaser Om Prakash, the
respondent herein, filed an application on 12.10.1982
being Civil Misc. Case No.10/1984 under Order 34 Rule 8
of C.P.C before the Civil Judge, Merta praying for a
Final Decree for the redemption of mortgage. The said
claim of the respondent was contested by the
appellants, inter alia, on the ground that the original
suit of Malchand was not for redemption of mortgage but
it was a suit for declaration that the mortgage is null
and void and for possession of the property. It was
also contended by the appellant that the original
decree which was passed is the final decree and its
execution is barred by limitation and the person who
has executed the sale deed in favour of respondent
herein has no authority to do so. Ultimately, the
Civil Judge, Merta by judgment and order dated 9.2.1988
allowed the Civil Misc. Application of the respondent
and passed a Final Decree and the following order was
passed:-
"Therefore the instant Application filed
by Om Prakash under order 34 Rule 8 is allowed
and it is ordered that after the compliance of
Decree dated 6.7.1967 by the Applicant, Final
Decree with regards to Property in question and
Title deed be passed and on compliance of
orders of Decree dated 6.7.1967, non-applicants
shall hand over the mortgaged property and
title deed to the Applicant."
10. Being aggrieved thereby, the appellant filed an
appeal being Appeal No.3/1988 before the First
Appellate Court and there also the learned District
Judge, Nagaur dismissed the appeal by judgment dated
9.7.1990 and passed the following order:-
"This Court is of the opinion that there
are no circumstances to set aside the Judgment
dated 9.2.1988 and Decree dated 12.2.1988
passed by Civil Judge, Merta. Hence the Appeal
fails and hereby dismissed."
11. Thereupon the appellants filed the Second Appeal
No.63/1990 before the High Court challenging the order
passed by the District Judge.
12. By the judgment under appeal the High Court
dismissed the second appeal. In the said second appeal
the following questions of law were framed:-
"(1) That Learned Addl. District Judge was not
correct in holding the Decree-dated 6.7.1967
passed by the Learned District Judge in Civil
Appeal No.13/65 to be a Preliminary Decree in
the Suit for Redemption and it has further
erred in holding that an Application for
passing a Final Decree for Redemption was
maintainable and it was within time.
2.That Decree in dispute dated 6.7.67 passed by Learned District Judge, Merta in Civil Appeal No.13 of 1965 was a mere Decree for Possession on payment ascertained amount mentioned therein, which has become barred by Limitation under Article 136 of Limitation Act and was not capable of execution. Thus application under order 34 rule 8 was not maintainable and the Learned Judge has erred in holding that was maintainable.
3.That even if it is consideration to be a Redemption Decree, it was Final Decree in Suit for Redemption, which also had become barred by Limitation under Article 136 of Limitation Act and thus Application under order 34 Rule 8 CPC was not maintainable.
4.That the Learned Judge has misconstrued the alleged Power of Attorney executed in favour of Kesrimal by Malchand and has erred in interpreting the work "to be" "No authority was given to Kesrimal to sell the property in dispute or Decree in dispute, and therefore, the alleged Sale Deed in favour of Respondent No.1 Om Prakash is absolutely void." 13. The High Court in its judgment under appeal dealt with all the questions and came to a finding, and in our view rightly so, that the decree was passed in a case of recovery of possession of mortgage property and that was specifically a decree for redemption of mortgage property. The High Court also held that the said decree attained finality as it was not challenged by the defendant judgment debtor. The High Court noted that the present appellant only sought for early payment of the decretal dues by moving an application before the First Appellate Court. The High Court also came to a finding that the decree dated 7.6.1967 was a preliminary decree and the plaintiff cannot be denied the opportunity of getting the time for depositing the amount for redeeming the mortgage property. The High Court rightly held that such right is given under Order 34 Rule 7 of the Code. It is clear that it was open to the defendant to take steps for passing final decree in terms of Rule 7 of Order 34 of the Code and that could have debarred the other side from redeeming the mortgage property. The defendant did not do so and the decree holder ultimately deposited the amount in the Trial Court before final decree was passed. The High Court also held that the power of attorney executed by Malchand allowed the power of attorney holder to have all powers including the authority to mortgage, sale or gift the property for any or philanthropic purposes. However, the High Court concluded by saying that the decree dated 6.7.1967 was a preliminary decree and was passed for redemption of mortgage of the property and thereafter an application for passing final decree was filed within the period of limitation. 13. We affirm the view taken by the High Court. The appeal is, therefore, dismissed. No order as to costs. (Dr. ARIJIT PASAYAT) New Delhi (ASOK KUMAR GANGULY) March 30, 2009