IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Civil Revision No. 185 of 2001. Date of Decision: 21st May, 2007. Satya Devi & others …..Petitioners. Versus Tarsem Lal & others .….Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. R.K. Gautam, Sr. Advocate, with Mr. Naveen Bhardwaj, Advocate. For the Respondents: Mr. Ramakant Sharma, Advocate. Dev Darshan Sud, Judge. This revision petition has been preferred against the order of the learned Sub Judge Ist Class Nalagarh, District Solan, passed in an application praying for passing of final decree in a redemption suit. The judgment debtors resisted the petition on preliminary objections of maintainability and limitation etc. It was pleaded that the amount was not paid within six months of the passing of the decree. The judgment debtors have renovated the premises by spending a sum of Rs. 40,000/- with the implied 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - consent and knowledge of the decree holder and no final decree can be passed as one Shri Amar Nath was tenant in the suit premises. The learned court dismissed the application holding that it was barred by limitation. The court has further held that since no period was prescribed for payment of mortgage amount, it became payable immediately. Since the amount was deposited after six months after the passing of the decree, which was after the expiry of 30 years (which according to the executing Court was 28.11.1998) mortgage having been executed on 12.2.1955, no final decree can be passed. I have heard learned counsel for the parties and have gone through the record. In Sudesh Vithal Hanamsheth and another vs. Sadanand Shivrao Koppal and others (1998) 8 SCC 591 the Supreme Court has held that where a preliminary decree is not in accordance with Order 34 Rule 7 of the Code of Civil Procedure, no fault can be laid on the party making the deposit for redemption. In Achaldas Durgaji Oswal vs. Ramvilas Gangabisan Heda AIR 2003 SC 1017, the Supreme Court has held that:- “18. The consequence for non-payment has been contained in sub-clause (ii) of clause (c) which is in the following terms: - (ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree. - 3 - (a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgaged property be, sold, or (b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid, that the plaintiff be debarred from all right to redeem the property. " 19. A bare perusal of the aforementioned provisions would clearly show that sub-clause (ii) has no application in relation to usufructuary mortgage. Sub- rule (2) of Rule 7 of Order XXXIV empowers the court to extend the time fixed for payment. Rule 8 of Order XXXIV provides for final decree in redemption suit. The right of the mortgagor to file an application for passing a final decree has been provided in the manner laid down therein. 20. The statutory provisions, as noticed hereinbefore, are required to be construed having regard to the redeeming features of usufructuary mortgage, namely, (a) there is a delivery of possession to the mortgage, (b) he is to retain possession until repayment of money and to receive rents and profits or part thereof in lieu of interest, or in payment of mortgage money, or partly in lieu of interest and partly in payment mortgage money (c)there is redemption when the amount due is personally paid or is discharged by rents or profits received (d) there is no remedy by sale or foreclosure. - 4 - 21. Order XXXIV Rules 7 and 8 do not confer any right upon the usufructuary mortgagee to apply for final decree which is conferred on mortgagee on other types of mortgages. By reason of sub-rule (1) of Rule 8 of order XXXIV, a mortgagor is entitled to make an application for final decree at any time before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule. No such application is again contemplated at the instance of the usufructuary mortgagee. By reason of sub-rule (1) of Rule 8 of Order XXXIV, a right of redemption is conferred upon the mortgagor of a usufructuary mortgage. Such a provision has been made evidently having regard to the right of redemption of a mortgagor in terms of section 60 of the Transfer of Property Act and further having regard to the fact that a usufructuary mortgagee would be entitled to possess the property in question till a final decree of redemption is passed. 22. The right of redemption of mortgagor being a statutory right, the same can be taken away only in terms of the proviso appended to Section 60 of the Act which is extinguished either by a decree or by act of parties. Admittedly, in the instant case, no decree has been passed extinguishing the right of the mortgagor nor such right has come to an end by act of the parties.” It is not disputed before me that the mortgage is a usufructuary mortgage as was held by the executing court in its order dated 5th September, 1998 in an application filed by the decree - 5 - holder under Order 21 Rules 11 and 35 of the Code of Civil Procedure. In view of this, the case is remanded to the trial court which shall proceed afresh in the matter in accordance with law, taking into consideration the fact that the decree was not drawn up in terms of Order 34 Rule 7 of the Code of Civil Procedure, which was the duty of the court to have done so, and the dictum as laid down in Achaldas Durgaji Oswal case (supra). Parties shall appear before the trial court on 12.8.2008. Record of court below be sent back immediately. 21st May, 2008. (Dev Darshan Sud), (cm) Judge.