' IKRAMULLAH KHAN, J.---Through the instant Civil Revision, the petitioner Ajmal Khan has assailed the order dated 11.01.2011 of the learned Civil Judge-VIII Lakki Marwat vide which request of petitioner for deposit of mortgage money was turned-down, and the subsequent judgment and decree dated 24.3.2011 of the learned Additional District Judge, Lakki Marwat, vide which the appeal was also dismissed.
2. Gist of the facts is that the petitioner/plaintiff has filed a suit wherein sought possession through redemption of mortgage against the respondent/defendant, regarding land fully detailed in the head-note of the plaint. Respondent/defendant contested the suit by way of filing written statement while the trial court out of divergent pleadings of the parties framed certain issues, the parties led their pro and contra evidence in support of their respective claims. After hearing counsel for the parties, the trial court vide its judgment dated 12.2.2010 decreed the suit of petitioner/plaintiff subject to stipulation that petitioner/plaintiff shall deposit the mortgage amount of Rs,300/- till 11.3.2010, failing which the judgment shall stand set-aside and the decree cancelled.
Consequently petitioner/plaintiff has requested the trial court through application for extension of time and deposit of mortgage money, which request of the petitioner/plaintiff was turned-down vide order dated 11.01.2011, which order was agitated through Civil Appeal No, 36/13 of 2011 before the learned Additional District Judge Lakki Marwat who also vide judgment dated 24.03.2011 dismissed the same, hence, the instant Civil Revision.
3. Learned counsel for the petitioner contended that the impugned judgment, rendered by court below is against the mandate of law, envisaged thereunder Rules 7 and 8 of Order VII C.P.C.
Respectively while the respondent did not approach the court for final decree, the petitioner could be permitted to deposit not only the mortgage money but also all other charges incurred thereby in accordance with Rules 7 and 8 of Order XXXIV, C.P.C. But both the learned courts below erroneously have dismissed the prayer of the petitioner, in this regard fell in error of law have occasioned miscarriage of justice, which, this court in exercise of its revisional jurisdiction may rectify.
4. On the other hand, learned counsel for respondent vehemently supported the concurrent findings of learned courts below and argued that as the mortgage money was not deposited by the petitioner, within the prescribed period, provided, thereunder the judgment of the learned trial court, the impugned decree had lost its validity, could not be executed or finalized.
5. I have heard learned counsel for the parties in light of law, applicable to the case of the parties.
6.. It is an admitted fact, that a preliminary decree in regard to the suit property had passed in favour of petitioner on 12.02.2010, however, the petitioner did not deposit the mortgage money, the judgment dated 12.02.2010 i.e, 30 days.
7. The record reveals that petitioner had applied for depositing the required mortgage amount on 04.01.2011, much thereafter, the prescribed period, which was 11.03.2010 and as such, the learned courts below did not extend the period for depositing the required amount and application as well as the appeal filed by petitioner was dismissed accordingly.
8. The provision contained in Rule 7 of Order XXXIV, C.P.C., provides the mode and manner that how a preliminary decree, in regard to a suit for redemption would be passed which reads as:---
7. Preliminary decree in redemption suit. (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree: -
(a) ordering that an account be taken of what was due to the defendant at the date of such decree for:-
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security, together with interest thereon ; or
(b) declaring the amount so due at that date; and
(c) directing:-
(i) that if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10 together with subsequent interest on such sums respectively as provided in Rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all in cumberances created by the defendant or any person claiming under him, or, where the defendant claims by derived title, by those under whom he claims, and shall also, if necessary, put the plaintiff in possession of the property; and
(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 interests, the defendant shall be entitled to apply for a final decree:-
(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 mortgage 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.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
9. And clause (ii) explains, the consequences if the payment due under or by the preliminary decree is not made or before the date so fixed, which reads as:--
(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 interests, the defendant shall be entitled to apply for a final decree:-
(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 mortgage 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.
10. The above referred provision of law, entitle the mortgagee, against whom a preliminary decree had passed to apply for final decree for sale or foreclosure if the decree holder/ mortgagor defaulted in the payment of the mortgage money.
11. Keeping in view the provision contained in clause (ii) item (a) and (b), a decree for sale will be passed except in case of the mortgage by conditional sale, a usufructuary mortgage or an anamolous mortgage in which case a decree for foreclosure will be passed but in case of usufructuary mortgage the mortgagor is entitled to make payment at any time even after the expiry of the period fixed and apply for a final decree. A usufructuary mortgagee cannot apply for a final decree on default of payment by the mortgagor as rule 7 (i) (c) (ii) is in applicable in such a case.
12. The court, seized up the matter, in regard to passing of final decree, in view of sub-rule (2) of Rule 7 of Order XXXIV, C.P.C., may extend the time fixed for payment of the amount fixed or decreed due under sub-rule (i) ibid or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest, on good cause, shown and upon terms to be fixed by the court.
13. In case in hand, it is admitted fact that respondent/ mortgagee, had not applied to the court, for final decree while no decree could be passed, in favour of respondent, being usufructuary mortagee, however, the right to redeem could not be extinguished till the final decree is passed.
14. There is also no bar to bring a 2nd suit where the property was not redeemed despite an earlier decree for redemption. In this respect reliance is placed on the case titled Babu Ahmad Din and others v. Ch.Muhammad Amin and others (PLD 1954 Lahore 341) wherein it has been held that:-- "A second suit for redemption would lie even where the mortgagor had not redeemed the property after a decree for redemption had been passed in his favour"
' Reliance is also sought on the case titled M.D. Azim and others v. M.S Sultan and others (AIR (33)
1946 Patna 99) wherein it has been held that:- "Civil P.C. (1908), 0.34, Rr.7 and 8-Usufructuary mortgage---Preliminary decree for redemption--- Default by mortgage in paying amount declared under decree within time fixed---Mortgage still can redeem and apply for final decree. "
15. In view of the above reasons, this revision petition is accepted and the impugned judgment, rendered by both the courts below are set aside. The case is remanded to learned civil judge to proceed into the matter in accordance with law and as no final decree had been so far passed in regard to foreclosure or sale the' petitioner may be allowed to deposit the required mortgage money with a reasonable time.