1968 (2) TMI 124 - HC - Indian Laws

Summary

Issues:
- Suit for possession by redemption
- Maintainability of the suit for redemption after final decree for sale
- Right of partial or total redemption under Section 60 of the Transfer of Property Act
- Interpretation of Order 34, Rule 5, Civil Procedure Code
- Suit for redemption vs. suit for possession
- Standing of defendants 5 to 20 to raise objection
- Amendment of the plaint to convert the suit

Analysis:

The judgment involves a second appeal against the decree of the lower courts in a suit for possession by redemption. The plaintiffs and defendants were co-sharers in properties, including mortgaged properties, with the plaintiffs having a share in Unit No. I and Unit No. II. A series of mortgages were executed, leading to a final decree for sale of the mortgaged property. The plaintiffs then filed a suit for possession by redemption, impleading the erstwhile mortgagees and tenants as defendants. The main issue raised was the maintainability of the suit for redemption after the final decree for sale. The defendants contended that the suit was not maintainable as the mortgage debt had been fully paid off, suggesting a suit for recovery of possession instead.

The key legal question revolved around whether, after a final decree for sale based on a mortgage, the mortgagor can seek partial or total redemption under Section 60 of the Transfer of Property Act. The court referred to a Division Bench authority of the Patna High Court, which concluded that the right of redemption is extinguished by the final decree for sale under Order 34, Rule 5, Civil Procedure Code. The judgment analyzed the statutory provisions and emphasized that the mortgage debt merges into the decretal debt upon the passing of the final decree, precluding the right of redemption.

Furthermore, the court rejected the argument to treat the redemption suit as a suit for possession, highlighting that the right of redemption no longer subsisted after the final decree for sale. It was also clarified that defendants 5 to 20, who derived title from the erstwhile mortgagees, could raise objections regarding the suit's maintainability. Lastly, the court dismissed the request to amend the plaint to convert the suit for redemption into a suit for possession, as the causes of action were distinct and the matter had been contested in the trial court.

In conclusion, the High Court set aside the judgments of the lower courts and dismissed the plaintiffs' suit for possession by redemption, emphasizing that the right of redemption was extinguished by the final decree for sale.