Civil Appeal No 750 of 1973
From the Judgment and Order dated 2291972 of the High Court of Bombay in First Appeal No 540 of 1969
TS Krishnamurthy Iyer K Rajendra Chowdhary and K Shivraj Chowdhary for the Appellants
VM Tarkunde and Mrs J Wad for the Respondents
The Judgment of the Court was delivered by DUTT J
This appeal by special leave is at the instance of the defendants in a suit for redemption of two mortgages and is directed against the judgment and decree of the Bombay High Court affirming those of the Joint Civil Judge Senior Division Kolhapur decreeing the suit
On June 16 1925 the predecessors in interest of the respondents executed a possessory mortgage bond for Rs5000 in favour of the predecessor in interest of the appellants
The mortgage bond contained a recital that the mortgagee should appropriate the income of the property consisting of some plots of land towards the sum of Rs3000 and was entitled to interest  9 per annum for the balance sum of Rs2000
By a second mortgage bond which was by way of a simple mortgage executed on September 3 1928 the mortgagors mortgaged the same property to the same mortgagee to secure repayment of a further loan of Rs2000 with interest  9 per annum
The respondents filed a suit for redemption of the two mortgages 693 in the court of the Subordinate Judge First Class Ichalakaranji being Suit No 3 of 1947
A preliminary decree for redemption was passed on September 20 1948 and it was declared that the amount of Rs12125 and odd and a further amount of Rs236 being the cost of the suit were due from the mortgagors to the mortgagee
The mortgagors were directed to pay the amount within six months and on such payment to get the property redeemed failing which liberty was given to the mortgagee to apply for a final decree for sale
As the mortgagors failed to make payment within the specified period on an application made by the mortgagee a final decree for sale was passed in the suit on March 21 1952
The decretal dues as declared in the final decree were Rs12361 and odd plus cost amounting to Rs41 for which the mortgaged property or sufficient portion thereof was directed to be sold
In other words a preliminary decree and a final decree in accordance with the provision of Order XXXIV Rules 7 and 8 were passed
Although the final decree for sale of the mortgaged property was passed the mortgagee did not execute the final decree and allowed the same to be time barred
The mortgagee and after him his heirs and legal representatives however continued to be in possession of the mortgaged property
The respondents who are the successors in interest of the original mortgagors filed a second suit for redemption of the mortgages being Special Civil Suit No 6 of 1968 in the Court of the Joint Civil Judge Senior Division Kolhapur on January 9 1968 against the appellants who are the heirs and legal representatives of the original mortgagee
It was claimed by the respondents that in spite of the passing of the final decree for sale in the earlier suit being Suit No 3 1947 the mortgage still subsisted and that they were entitled to redeem the same and get possession of the mortgaged property
Accordingly they prayed for a decree for redemption accounts and possession of the mortgaged property from the appellants
The appellants contested the suit by filing written statement
It was contended by them that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit their right of redemption had been extinguished
They denied the respondents  claim for accounts
It was claimed by the appellants Nos 3 4 and 5 that their predecessors in title were tenants of the suit land from before 1925 and as such they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act
Alternatively it was contended that even if the respondents were held to be entitled to 694 redeem the mortgages they were not entitled to obtain physical possession of the mortgaged property as the appellants had become protected tenants
The learned Joint Civil Judge came to the findings that notwithstanding the preliminary decree or the final decree passed in the previous suit being Suit No 3 of 1947 the mortgagors  right of redemption remained alive and was not extinguished and that accordingly the respondents were entitled to redeem the mortgages
The plea of protected tenancy as raised by the appellants was negatived by the learned Joint Civil Judge
On the above findings the learned Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment of a sum of Rs13551 and odd including interest to the appellants
In arriving at the amount he applied the rule of Damdupat in calculating the interest on the principal amount up to the date of the suit
A usual preliminary decree for redemption was passed by the learned Joint Civil Judge under Order XXXIV Rule 7 of the Code of Civil Procedure declaring the aforesaid amount as being due from the respondents to the appellants under both the mortgage bonds up to the date of the suit and a period of six months was granted to pay the aforesaid amount and costs of the suit and future interest on the aforesaid amount  6 per annum from the date of the suit till realisation
It was further directed that on payment of the amount in court the appellants would deliver actual possession of the mortgaged property to the respondents and that in default of payment as aforesaid liberty was given to the appellants to apply to the court for a final decree for foreclosure
Being aggrieved by the judgment and decree of the learned Joint Civil Judge the appellants preferred an appeal to the High Court
At the hearing of the appeal it was contended by the appellants that the second suit for redemption was not maintainable that the rule of Damdupat was not applicable to mortgages and that the appellants had become protected tenants by virtue of the Bombay Tenancy and Agricultural Lands Act
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and a final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues still the right of redemption was not extinguished
As to the applicability of the rule of Damdupat to mortgages the High Court took the view that the learned Joint Civil Judge was justified in applying the rule following certain decisions of the Calcutta Bombay and Nagpur High Courts which will be referred to presently
Regarding the plea of the appellants that they had become 695 protected tenants under the Bombay Tenancy and Agricultural Lands Act it was held that as the plea was raised by the appellants Nos 3 4 and 5 the amount of land which happened to be in possession of the said appellants Nos 3 4 and 5 would be referred to the Mamlatdar and excepting such land the learned Joint Civil Judge was right in decreeing delivery of actual possession of the rest of the land in suit in favour of the respondents
Subject to this modification the High Court affirmed the decree of the learned Joint Civil Judge and dismissed the appeal with costs
Hence this appeal by special leave
In this appeal the appellants have challenged the findings of the High Court as to the maintainability of the second suit for redemption out of which this appeal arises and the applicability of the rule of Damdupat
The finding and direction of the High Court in respect of the plea of the appellants that they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act have not been challenged before us
Mr Krishnamurthy learned Counsel appearing on behalf of the appellants has urged that in view of the fact that a preliminary decree and a final decree were passed in the earlier suit in accordance with the provisions of Order XXXIV Rules 7 and 8 of the Code of Civil Procedure the present suit for redemption of the selfsame mortgages out of which this appeal arises is not maintainable
It is submitted by him that after a preliminary and a final decree for redemption are passed in accordance with the provisions of Order XXXIV Rules 7 and 8 of the Code of Civil Procedure the mortgage debt merges in the decretal debt and the right of redemption is extinguished
In support of his contention the learned Counsel has placed much reliance upon a decision of the Patna High Court in Sheo Narain Sah vs Mt Deolochan Kuer AIR 1948 Patna 208
In that case the appellant had purchased a share in the equity of redemption and one of the questions was whether the right of partial redemption acquired by the appellants would survive under Order XXXIV Rule 5 of the Code of Civil Procedure until confirmation of the same in the execution proceedings
In that context it was observed that the mortgage debt had merged in the decretal debt and after the passing of the final decree for sale neither the right of total redemption nor the right of partial redemption conferred on the mortgagor by section 60 of the Transfer of Property Act survived the final decree for sale all that remained thereafter was a different right of redemption conferred by Order XXXIV Rule 5
The observation regarding the merger of the mortgage debt in the decretal debt is in our opinion to some extent obiter
696 Section 60 of the Transfer of Property Act confers a right of redemption on the mortgagor
The proviso to section 60 reads as follows Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court
 It is thus manifestly clear that the right of redemption will be extinguished 1 by the act of the parties or 2 by the decree of a Court
We are not concerned with the question of extinguishment of the right of redemption by the act of the parties
The question is whether by the preliminary decree or final decree passed in the earlier suit the right of the respondents to redeem the mortgages has been extinguished
The decree that is referred to in the proviso to section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure as provided in sub rule 2 of Rule 3 of Order XXXIV and a final decree in a redemption suit as provided in Order XXXIV Rule 83a 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 made the court shall on an application made by the plaintiff in this behalf pass a final decree 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 final decree in a suit for foreclosure on the failure of the defendant to pay all amounts due the extinguishment of the right of redemption has to be specifically 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 Order XXXIV of the Code of Civil Procedure
These are the two circumstances 1 a final decree in a suit for foreclosure under Order XXXIV Rule 32 and 2 a final decree in a suit for redemption under Order XXXIV Rule 83a of the Code of Civil Procedure when the right of redemption is extinguished
In the instant case the earlier suit was not a suit for foreclosure nor was either of the mortgages a mortgage by conditional sale or an anomalous mortgage and accordingly there was no declaration in the final decree passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property
Rule 51 of Order XXXIV expressly recognised the right of the 697 mortgagor to redeem the mortgage at any time before the confirmation of a sale made in pursuance of a final decree passed in a suit for sale
Similarly Rule 81 of Order XXXIV permits the mortgagor to redeem the mortgaged property before the confirmation of the sale held in pursuance of a final decree in a redemption suit unless such final decree debars the mortgagor from all right to redeem the mortgaged property which as noticed earlier is provided for in sub rule 3a of Rule 8 of Order XXXIV relating to a mortgage by conditional sale or an anomalous mortgage
Thus the provisions of Order XXXIV have laid down in clear terms the circumstances when the right of redemption of the mortgagor would stand extinguished
It is also clear that in a suit for redemption a mortgage other than a mortgage by conditional sale or an anomalous mortgage the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale
In view of these provisions the question of merger of mortgage debt in the decretal debt does not at all arise
We are therefore of the view that the decision in Sheo Narain s case supra in so far as it lays down the merger of the mortgage debt in the decretal debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption is erroneous
In this connection we may refer to a decision of the Privy Council in Raghunath Singh vs Mt Hansraj Kunwar AIR 1934 PC 205 where it has been held by their Lordships that the right to redeem is a right conferred upon the mortgagor by enactment of which he can only be deprived by means and in manner enacted for that purpose and strictly complied with
It is manifestly clear from the said observation that the right of redemption will stand extinguished only under the circumstances as mentioned in the proviso to section 60 of the Transfer of Property Act that is to say 1 by the act of party or 2 by a decree of Court
We have already discussed above the circumstances when by a decree of Court the right of redemption is extinguished
The Federal Court had also occasion to consider whether a second suit for redemption was barred
Kania CJ speaking for the Court observed as follows The right of redemption is an instance of a subsisting mortgage and it subsists so long as the mortgage itself subsists
As held by the Privy Council in Raghunath Singh s case 61 IA 362 the right of redemption can be extinguished as provided in section 60 TP Act and when it is alleged to 698 have been extinguished by a decree the decree should run strictly in accordance with the form prescribed for the purpose
Unless the equity of redemption is so extinguished a second suit for redemption by the mortgagor if filed within the period of limitation is not therefore barred
 Therefore the contention made on behalf of the appellants that as a final decree was passed in the earlier redemption suit there was a merger of the mortgage debt in the decretal debt and as such the second suit for redemption is barred is without any substance and is rejected
We may now consider the second question as to whether the rule of Damdupat is applicable to a mortgage transaction
Admittedly it is an equitable rule debarring the creditor to recover at any given time the amount of interest which is in excess of the principal amount due at that time
It is urged by the learned Counsel appearing on behalf of the appellants that the rule is applicable only to a simple loan transaction and not to a transaction of mortgage
We are unable to appreciate this contention
In every mortgage there are two aspects namely i loan and 2 transfer of interest in immovable property
As mortgage is principally a loan transaction we do not find any reason why the rule of Damdupat which is an equitable rule should not apply also to mortgage
It has however been held in Madhwa Sighanta Onahini Nidhi vs Venkataramanjulu Naidu ILR 26 Madras 662 that the rule of Damdupat is inapplicable to cases of mortgage governed by the Transfer of Property Act
The principal reason for the decision is that in section 2 of the Transfer of Property Act before it was amended by the Amending Act 20 of 1929 it was provided and nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu law
 It was inferred that as the rules of Hindu law were saved only with regard to transfer of property as contained in the Second Chapter it was not saved with regard to the mortgages of immovable property and charges as contained in Chapter IV of the Transfer of Property Act
A contrary view was expressed by the Bombay High Court in Jeewanbai vs Monordas Lachmondas ILR In that case it has been held that it is not proper to infer that because it has been expressly enacted that nothing in Chapter II of the Transfer of 699 Property Act shall be deemed to affect any rule of Hindu law the Legislature has deprived a Hindu mortgagor of the protection afforded to him by the rule of Damdupat
The Calcutta High Court in Kunja Lal Banerji vs Narasamba Debi ILR has refused to follow the decision in Madhwa Sidhanta s case supra clearly pointing out that in that High Court the uniform rule has been to disallow as between Hindus  interest larger that the amount of principal in making up a mortgage account
In Bapurao vs Anant Kashinath AIR 1946 Nagpur 210 a Division Bench of the Nagpur High Court has held that the rule of Damdupat is applicable to a mortgage and that it does not in any way affect the provisions of the Transfer of Property Act inasmuch as it merely prevents recovery of interest on the loan in excess of the principal
Admittedly the rule of Damdupat was never applicable to Madras
It has been already noticed that in Madhwa Sidhanta s case supra the principal reason to hold that the rule was inapplicable to mortgages governed by the Transfer of Property Act was that in view of section 2 of the Transfer of Property Act before it was amended by Act 20 of 1929 the rules of Hindu law were not saved with regard to mortgages of immovable properties and charges as contained in Chapter IV of the Act
By the Amending Act 20 of 1929 section 2 has been amended and after such amendment it reads and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law
 The inference that was drawn in Madhwa Sidhanta s case supra from the provision of section 2 about the non applicability of the rules of Hindu law including the rule of Damdupat to mortgages cannot now be drawn from the amended provision with regard to any rule of Hindu law
Moreover we are of the view that the law was not correctly laid down in Madhwa Sidhanta s case supra and the Calcutta Bombay and Nagpur High Courts have rightly held in the decisions mentioned above that the rule of Damdupat is applicable to mortgages
No other point has been urged on behalf of the appellants
For the reasons aforesaid the judgment and decree of the High Court are affirmed and this appeal is dismissed with costs quantified at Rs3000
SL Appeal dismissed


Summary:
The plaintiff appellant filed a suit for ejectment of the tenant defendant No 1 for default in payment of rent and also to have wrongfully sublet the flat to the second defendant
None of the defendants appeared
At the ex parte trial the plaintiff examined one witness and tendered certain documents in evidence
The Single Judge decreed the suit
Subsequently to the decree the two defendants are alleged to have inducted the third defendant respondent No 1 to occupy the demised flat
The plaintiff filed an application for modification of the decree
The respondent No 1 first filed an application for setting aside the ex parte decree but later withdrew it and assailed the decree in appeal
The Letters Patent Bench allowed the appeal and set aside the decree on the ground that the plaintiff s sole witness did not disclose his concern with the suit property or his relationship with the plaintiff and that on the basis of the meagre evidence led by her she had failed to establish her case
In the appeal to this Court it was contended on behalf of the appellant that the witness was the husband of the plaintiff appellant and thus he was fully conversant with the relevant facts and that the criticism by the High Court was not justified
Reliance was placed on an affidavit filed in this Court
It was further contended that even ignoring the relationship of the witness with the plaintiff his evidence was adequate to prove the plaintiff s case which has not been rebutted by any of the defendants either by filing a written statement or by cross examining the witness
757 Allowing the appeals and remanding the suit for retrial
 HELD 1
The plaintiff cannot be allowed a decree on the evidence led by her in the suit founded on the plaint as it is
Even in absence of a defence the Court cannot pass an ex parte decree without reliable relevant evidence
The fact that the plaintiff chose to examine some evidence in the case cannot by itself entitle her to a decree
The Letters Patent Bench was therefore justified in scrutinising the evidence from that angle
760B D 2
The suit was filed and the relief was claimed on the basis that the third defendant was inducted in the flat in question by the other two defendants after they had suffered a decree
There is not an iota of evidence led by the plaintiff to prove this story
On the other hand the evidence of the sole witness who positively stated that the defendant No 3 was in possession of the flat in question from before the date of the decree passed in the earlier suit disproves this part of the case
If the defendant No 3 is assumed to be in possession from before the earlier decree several other issues would arise for consideration on which the plaintiff will be required to lead further evidence necessitating retrial
760D E 3
Affidavits are not included in the definition of evidence  in section 3 of the Evidence Act and can be used as evidence only if for sufficient reasons Court passes an order under Order XIX Rules 1 or 2 of the Code of Civil Procedure
The plaintiff appellant cannot be allowed to fill up the lacuna in the evidence belatedly at the Supreme Court stage
759E F 4
In view of the prayer made by the plaintiff in the High Court and in CA No 4145 of 1986 before this Court for remanding the suit for retrial and the concession of defendant No 3 before this Court the judgments of the High Court are set aside and the suit is remanded to the Single Judge for retrial and disposal in accordance with law expeditiously
761B