' ZAFI'AR HUSSAIN MIRZA, J.-This is an appeal by special leave from the judgment and order of the High Court of West Pakistan, Lahore, dated 16-12-1965, passed in Letters Patent Appeal No, 25 of 1963, whereby the said appeal was dismissed.
2. Leave was granted to examine the question "whether on the terms of the mortgage deed the High Court was right in construing it as an anamolous and not a usufructuary mortgage". The contention on behalf of the appellant was that the High Court had wrongly read the personal covenant for payment of interest into the operative part of the said mortgage deed.
3. The aforesaid question of the interpretation of the terms of the mortgage-deed, arises in the following circumstances. The disputed land measuring about 31 kanals situated in village Atawa Tehsil and District Gujranwala was already mortgaged as per registered deed dated 23-9-1913, when the appellant acquired the interest of the mortgagor in the property. Subsequently the appellant brought a suit for redemption of the mortgage in 1941 against the successors-in-interest of the original mortgagee as the latter had died in the meantime. This suit was decreed on 5-1- 1942 by Sub-Judge First Class, Gujranwala. This decree was made in the following terms "In the presence of plaintiff with Jiwan Lal Pleader for the plaintiff and defendants with L. Arfin Dass Pleader for the defendants it is ordered that a decree for possession of the land in suit on payment of Rs, 2200 by 1-6-1942 be passed in the plaintiff's favour against the defendants Nos. 1 and 2 the defendant No, 3 is pro forma defendant. If the amount is not paid within the prescribed period the plaintiff's suit shall stand dismissed."
' This decree was modified on the appeal of the defendants in the suit by the Senior Sub-Judge to the extent that the decree-holder was required to deposit Rs, 700 instead of Rs, 200 which amount had to be deposited by 6-7-1942 failing which the suit was to stand dismissed with costs. The appellant sought to challenge the last mentioned decree in Second Appeal before the High Court but this appeal was dismissed on 12-1-1944. It is pertinent to note that during the proceedings of the Second Appeal by an interlocutory order the appellant was directed to deposit a sum of Rs, 400 in addition to the original decretal amount of Rs, 200. According to the appellant during the pendency of the Second Appeal before the High Court he had deposited the amount so directed by the interlocutory order with the result that he had in all deposited Rs, 600 in Court by the time his Second Appeal was dismissed.
4. Since as a result of the dismissal of the appellant's Second Appeal the modified decree passed by the Senior Sub-Judge directing deposit of Rs, 700 before 6-7-1942 stood restored, the appellant filed an application for permission to deposit the decrial amount and prayed for passing final decree for redemption. The defendants in the suit also filed an application to debar the applicant from redeeming the mortgaged property. Both these applications were disposed of by the learned Sub-Judge, Gujranwala as per his order dated 21-2-1945. The appellant's prayer was refused on the ground that since the appellant had failed to deposit the decrial amount within the prescribed time as directed by the decree he cannot be allowed to deposit the same after the expiry of such time. Simultaneously the learned Judge allowed the prayer of the defendants debarring the appellant from redeeming the mortgaged property. Subsequently the appellant made an application under section 151 of the Code of Civil Procedure for permission to deposit the decrial amount which was also dismissed on 30-11-1950. This concluded the first phase of the litigation.
5. The suit in which the present appeal arises, was filed by the appellant (Suit No, 344 of 1959) on 24-7-1959. By this suit the appellant once again sought a decree for redemption of the property.
The present respondent who is the successor-in-interest of the previous mortgagees contested the suit. The principal points for decision in this suit were (1) whether the order dated 21-2-1945 passed in the previous suit debarring the plaintiff from redeeming the property was an order passed in terms of Order XXXIV, rule 8 of the Code of Civil Procedure and section 60 of the Transfer of Property Act and (ii) whether the suit was barred by res judicata in view of the decision in the previous suit. The trial Court held on the first point relying on the case of Nathu Mal v. Ude Ram that the order mentioned therein amounted to a decree "inasmuch as it purported to decide finally rights of the parties so far as the mortgage in question was concerned and had the effect of dismissing the plaintiff's suit." The contention of the present appellant that the order in question was passed without jurisdiction inasmuch as no or let of foreclosure could be passed, in the circumstances of the case, under Order XXXIV, rule 8 of the Code of Civil Procedure was repelled on the ground that an erroneous view taken by a Court did not render the order a nullity in law. In this view of the matter on the second point the trial Court held that the suit was barred by the principles of res judicata and dismissed the suit by judgment dated 8-3-1961. This decree was reversed in an appeal filed by the present appellant and the case was remanded for decision on merits by the learned District Judge, Gujranwala on 12-6-1961. The learned District Judge disagreed with the view taken by the trial Court and held that the decree passed in the previous suit was a nullity and could be ignored, in that, the same was in a form other than the one prescribed under Order XXXIV of the Code of Civil Procedure, no provision of which authorised the Court "to issue the direction requiring the payment of the mortgage money by certain date or inserting the penal clause that failure to make the payment of the mortgage money would result in the dismissal of the suit or what is worse debar the mortgagor from getting the land redeemed at any time in future." On this line of reasoning the learned District Judge held that the decision in the previous suit did not operate to bar the present suit. The respondent then questioned the decision of the learned District Judge in.
Second Appeal before a learned Single Judge of the High Court at Lahore. It was conceded before the High Court on behalf of the respondent that the right of redemption conferred by section 60 of1 the Transfer of Property Act could be extinguished only by the act of the parties or by the decree of the Court but it was contended that the order dated 21-2-1945 had the effect of debarring the mortgagee from redeeming the land in suit and, therefore, no second suit was maintainable. In reply the contention on behalf of the present appellant was that since in terms of Order XXXIV, rule 8 to the Code of Civil Procedure no such order could be, passed in respect of a Usufructuary mortgage to which class the mortgage in this suit belonged, the order in'question was passed without jurisdiction and hence the second suit was competent. The learned Single Judge held (i) that the mortgage deed dated 13-10-1913 by which the mortgage in this suit was created, was a usufructuary mortgage and, therefore, in terms of Order XXXIV, rule 8(3) the Court was not competent to pass an order debarring the mortgagor to redeem the mortgage property. The learned Judge took the view that a mere noncompliance with the terms of preliminary decree and the failure to pay the mortgage money in time, with the consequent dismissal of the suit, would not by itself bar a second suit for redemption. Nonetheless in the view taken by the learned Judge ultimately, the order dated 21-2-1945 passed by the Court in the previous suit debarring the appellant from the right of redemption, was an insurmountable legal hurdle which prevented the Court from entertaining a second suit for redemption. The contention that the said order having been passed without jurisdiction was a nullity in law and could not operate as res judicata, did not impress the learned Judge for reasons, which may be stated in his own words : "By means of that order, as stated above, two applications, both, presumably, under Order XXXIV, rule 8 of the Civil Procedure Code, one by the mortgagor and the other by the mortgagee, were disposed of. The Senior Sub-Judge had jurisdiction over the subject-matter of the suit and was competent to deal with the two applications given by the parties to him, in one of which a prayer was made for extension of time for payment of money and in the other it was claimed that the mortgagor was deberred from getting the mortgaged property redeemed. It cannot, therefore, be argued that the order in question was passed by a Court which was not competent to deal with the subject-matter of the suit."
' The final conclusion was expressed by the learned Judge as under : "Mr. Muhammad Abdullah Cheema's order was erroneous and although he could not have passed an order debarring the mortgagor from getting the mortgaged property redeemed, he had jurisdiction to deal with the subject-matter of the suit and, hence, his order cannot be described to be without jurisdiction and, as such, null and void."
' The learned Judge accordingly accepted the appeal, set aside the judgment of the District'Judge and dismissed the present appellant's suit.
6. The appellant then preferred a Letters Patent Appeal which was also dismissed as per the impugned judgment in this appeal by a learned Division Bench of the High Court. Before the learned Letters Patent Bench it was contended that as the order dated 21-2-1945, could not be made under the provisions of Order XXXIV, rule 8 of the Code of Civil Procedure, the said order was not only erroneous but was without jurisdiction and as such null and void. On the other hand it was submitted on behalf of the respondent that the mortgage in question not being a usufructuary mortgage the said order was not without jurisdiction. The learned Judges did not go into the question as to whether the order dated 21-2-1945 was passed with or without jurisdiction, as they found, on an examination of the terms of the mortgage deed that it was not a usufructuary mortgage but an anomalous mortgage as there was personal covenant to pay incorporation in the said deed. In this view of the matter, it was held, that an order could be passed under the provisions of Order XXXIV, rule 8 of the Code of Civil Procedure declaring the plaintiff and all .Persons claiming under him to be debarred from all rights to redeem the mortgaged property. The learned Judges, therefore agreed with the final conclusion reached by the learned Single Judge of the High Court that the present suit was barred by res judicata but for different reasons.
7. In support of the present appeal two main contentions have been advanced, namely, (i) that the learned Judges in the High Court have wrongly construed the terms of the mortgage deed to contain a stipulation for personal liability as no such personal covenant to repay was stipulated therein and (ii) that the decision in the former suit did not operate as res judicata, as the order dated 21-2-1945 being passed without jurisdiction was a nullity in law. The respondent has not appeared before us and has already been declared ex parte. In regard to the first contention, it can only arise for consideration if the appellant fails to establish the point raised in the second contention. It will be seen that the question raised and made the foundation for the judgment in appeal, namely, that the mortgage in this case was not in the nature of usufructuary but an anomalous mortgage, first arose for determination before the learned Single Judge of the High Court, in the Second Appeal and was not determined by the trial Court or first appellate Court.
Significantly this question also did not directly or substantially form part of the subject-matter of any issue decided in the former suit culminating in the order dated 21-2-1945. We, therefore, do not find it necessary to go into this question, since in or opinion, no relevant question of res judicata arises in this case.
7-A Now the Code of Civil Procedure requires by the provision of Order XXXIV, rule 7 that in a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree. The form in which such a preliminary decree is to be passed has been provided in great detail to declare, inter alia.
The mortgage amount that is due to the mortgagee on the date of the decree and further direct that if the plaintiff pay into Court the amount so declared due, on or before such date as the Court may fix within six months from the date on which such amount is declared and pays other costs, charges and expenses, the defendant shall do the acts described in the provision to effect the redemption of the mortgage. The preliminary decree also is to direct that in case of failure to pay the amount as aforesaid; within time fixed by the Court, the defendant shall be entitled to apply for a final decree for sale of the mortgage property or for the plaintiff to be debarred froth all rights to redeem the property. Rule 8 of the same Order provides for passing a final decree in such a redemption suit in favour of the plaintiff, if he makes payment of the amount found due from him, inter alia, before a final decree debarring him from all rights to redeem the mortgage property bas been passed. Sub-rule (3) gives a similar right for obtaining a final decree to the defendant in case of failure to pay the amount on. The part of the plaintiff, inter alia, to debar him from all rights to redeem the mortgage property. Clearly the decree passed in the former suit, as reproduced above, was not in accordance with the requirements of Order XXXIV, rule 7 of the Code of Civil Procedure.
On a plain reading of the decree it is further clear that it was not even a preliminary decree, as according to section 2(2) of the Code of Civil Procedure a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. A decree is final, according to the said definition clause when such adjudication which is formally expressed in it, completely disposes of the suit. The decree in question indeed completely disposed of the suit by providing for the payment of the mortgage amount and the consequences of the non-payment thereof within the prescribed time. No further proceedings were to be taken or were indeed envisaged except that certain consequences had to follow on the happening or non-happening of certain specific events. It is in the context of these facts that the effect of the proceedings taken subsequent to the aforesaid decree is to be determined:
8. It is well-settled, that the power of the Court to extend time under section 148 of the Code of Civil Procedure for the doing of any act, does not apply where the period if fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains season over the action.. This principle proceeds on the basis that a decree normally puts an end to a suit and thereafter the power of the Court to pass any other order with regard to the subject-matter of such suit also comes to an end and the Court becomes functus officio with regard thereto. This is a result directly of the provisions of Order XX, rule 3 of the Code of Civil Procedure which lay down that when a judgment in the suit is signed and pronounced, it cannot afterwards be altered or added to save as provided by section 152 or on a review. The decree has to be drawn up in accordance with the judgment (vide Order XX, rule 6 of the Code of Civil Procedure). There can be no doubt that the decree in his case as its terms manifestly indicate, was intended to operate automatically without further intervention by the Court. This is clear from the words "If the amount is not paid within prescribed period the plaintiff's suit shall stand dismissed." (See PLD 1966 SC 983). On the failure to pay the entire decretal amount in terms of the modified decree by 6-7-1942, by the operation of the terms of the decree, the suit stood dismissed on that date. If, therefore, the decree passed on 5-1-1942 was a final decree, which it was in or opinion, all the proceedings in the suit terminated on that date and the Court ceased to have seisin over the subject-matter.
Thereafter, there was no power left in the Court to pass either an order for extension of time to deposit the decretal amount or to pass any further orders, as it did to debar the mortgagor from redeeming the mortgage.
9. Thus, the order passed on 21-2-1945 was wholly without jurisdiction and coram non judice. Such order cannot produce any legal consequences and hence cannot be relied upon to plead the bar of res judicata in a subsequent suit. The decree in the case of Raghunath Singh v. Hans Raj was couched in somewhat similar terms entitling the plaintiff mortgagor to a decree for possession by redemption of the mortgage upon payment of the mortgage amount by a certain date, failing which it was directed "his case will stand dismissed". In a subsequent suit brought by the mortgagor for redemption the question whether the decision in the previous suit operated as res judicata was, inter alia, raised. In connection with this question their Lordships referred to sections 60, 92 and 93 of the Transfer of Property Act, 1882. Now section 60 of the Act confers upon the mortgagor the right to redeem the property at any time after the principal money has become payable. This right can be lost only in the manner provided in the proviso to this section which reads as under "Provided that the right conferred by this section has not been extinguished by the act of the parties or by the decree of a Court."
' By the Transfer of Property (Amendment) Act, 1929 the word 'decree' was substituted for the word 'order' originally enacted therein. In the Privy Council case the relevant provisions contained in this proviso before the amendment, were considered. Section 92 of the Act provided for the form and contents of a redemption decree which are substantially the same as' contained in Order XXXIV, rule 7 of the Code of Civil Procedure. Finally section 93 provided a further opportunity for the defendant to obtain an order from the Court debarring the plaintiff (decree-holder), in case of nonpayment of the mortgage amount within the prescribed time, absolutely from the right to redeem. This section expressly provided that upon the passing of such an order the plaintiff's right to redeem and the security shall, as regards the property affected by the order, both be' extinguished. It will thus appear that in the reported case also the Court was statutorily required to prepare a decree in terms of section 92 of the Transfer of Property Act which provided for the debarring of the plaintiff from the right to redeem the property in case of non-payment. But in that case also the trial Court did not incorporate these terms into the decree but merely provided for the dismissal of the suit in case of non-payment. The argument that, notwithstanding, the form in which the decree was passed, it had to be construed and read in the light of the section 92 of the Transfer of Property Act and, therefore, the plaintiff's right to redeem had been extinguished, was repelled and the following observations were made : "The right to redeem is a right conferred upon mortgagor by enactment, of which he can only be deprived by means and in manner enacted for this purpose, and strictly complied with. In the present case the only basis for the claim that the right to redeem has been extinguished is section2 60, but in their Lordships view the old decree cannot properly be construed as doing that which it does not purport to do, viz. As extinguished the right to redeem."
' This Court in the case of Tikanidas and another v. Abdul Wail and another followed the dictum laid down by the Judicial Committee of the Privy Council in the case referred to above and expressed the opinion as under : "It would appear to follow from this that the right of redemption, which is an incident of a subsisting mortgage, subsists so long as the mortgage itself subsists. It can only be extinguished as provided by section 60 of the Transfer of Property Act and when it is alleged to have been extinguished by a decree, the decree should run strictly in accordance with the forms prescribed for the purpose and unless the right of redemption is so extinguished a second suit for redemption if filed within the period of limitation will not be barred."
The ratio of this case fully covers the point raised in the present case, as in this case also the decree passed by the trial Court was not in accordance with the requirements of Order XXXIV, rule 7 of the Code of Civil Procedure and, therefore, the right to redeem could not be extinguished as a result of such a decree. The learned Single Judge of the High Court whilst holding accordingly that non-compliance with the terms of the decree in this case would not operate by itself to bar the second suit for redemption, nonetheless felt that the order dated 21-2-1945 had the force of a decree as the Court had jurisdiction over the subject-matter of the suit and was competent to pass an order debarring the mortgagor from all rights of redemption. However, as already discussed, the Court having become functus officio on the passing of a final decree could not deal with the subject-matter of the suit and even otherwise, the suit of the mortgagor stood dismissed as a result of the nonpayment of decretal amount by the force of the self-operating terms of the decree itself, for Which no further orders were necessary. The other important aspect of this case is that the learned Single Judge seems to have overlooked the changes that had taken place in the law that was considered in the Privy' Council case, which was distinguished on the ground that in that case no specific orders were passed by the Court in the first suit debarring the mortgagor from the right to redeem the property. As has been already mentioned, before the 1929 amendment the proviso to section 60 provided for the extinguishment of the right to redeem by the act of parties or by "order of a Court." This was because section 93 of the Transfer of Property Act as it then stood, furnished an independent right to the defendant to obtain an order from the Court for debarring the plaintiff from redeeming the property in suit, in case he failed to pay the mortgage amount as required by the decree passed in terms of section 92 of the same Act. After the amendment of the law, the right to redeem, was liable to be extinguished, inter alia, by decree of the Court, which clearly referred to amended provisions of the Code of Civil Procedure incorporating Order XXXIV therein. By the Transfer of Property (Amendment) Supplementary Act, 1929, sections 92 and 93 were omitted and the matter relating to decrees passed in suits upon mortgages, were solely regulated by the provisions of Order XXXIV of the Code of Civil Procedure.
There was, therefore, no independent right, as envisaged by section 93 of the Transfer of Property Act as it stood, before the amendments, to obtain an order from the Court as distinguished from a decree to debar the plaintiff from the right to redeem. Apparently the previous suit in this case, was governed by the amended law and as such no independent order of the nature passed by the Court on 21-2-1945 could be competently passed, except in pursuance of a preliminary decree in terms of Order XXXIV, rule 7 of the Code of Civil Procedure, by way of a final decree under rule 8 of the Order. The decree in that case, not having been passed in the form required by Order XXXIV, rule 7, no right was created in favour of the defendant to apply for a final decree to debar the plaintiff from exercising the right of redemption. The result was that the mortgage survived and the right of redemption was not extinguished. The distinction drawn by the learned Single Judge between this case and the Privy Council's case, was therefore, inapt.3
10. The case of Tikamdas already referred to, is sufficient authority for the proposition that in order to deprive the mortgagor of the right to redeem by decree of Court, the decree must be strictly in accordance with the form prescribed by Order XXXIV, rules 7 and 8 of the Code of Civil Procedure.
Otherwise the right to redeem shall continue to vest in the mortgagor. If the decree is not in such form, it can only affect or create the rights according to the tenor of its terms. Also the terms in which a decree is passed, whether preliminary or final cannot be altered either in the future proceedings of a suit following a preliminary decree or in execution proceedings of a final decree, unless altered or modified in appropriate proceedings. Accordingly the preliminary decree stands on its own terms and the Court taking further proceedings thereon cannot go behind it, nor can the final decree passed in such proceedings amend or go behind the preliminary decree on a matter determined by the latter (See AIR 1973 SC 292). Such is the sanctity attached by law to the terms of a decree passed in the suit. Applying these principles in the present case, even if the decree passed in the previous suit on 5-1-1942 is regarded as a preliminary decree, on the terms incorporated therein, on the failure of the plaintiff to deposit the amount, his suit was to stand dismissed, but the decree did not envisage the passing of the order foreclosing his right of redemption.
11. The other aspect of the case that cannot remain unnoticed, is that if a proper preliminary decree in the form required by law had been passed, the Court would have been competent to allow the mortgagor to pay the mortgage amount, even after the expiry of the period fixed therefor in such a decree until the passing of the final decree (vide Order XXXIV, rule 7(2), C. P. C.). The reason for this provision is that until the final decree is passed foreclosure or sale in pursuance of the non- payment of the mortgage amount declared by the Court, the equity or the right of redemption survives, and is available to the mortgagor because it gets extinguished, inter alia, on the passing of the final decree to that effect. In this case when the appellant applied to the Court for permission to deposit the amount, no such decree had been passed and therefore, he was within his right to apply for the redemption of the property, but the Court rejected his prayer solely on the ground that the time fixed for the purpose by the decree had expired. If the learned Judge was bound by the terms of the decree so strictly, he could not also pass an order debarring the plaintiff from the right to redeem, as it was quite clearly repugnant to the terms of the decree.
12. Looked at from any angle, therefore, the order passed on 21-2-1945 in the previous suit debarring the appellant from all rights to redeem the mortgage is a void order and incapable of sustaining the plea of res judicata. It may be argued that in invoking the provisions of Order XXXIV, rule 8 of the Code of Civil Procedure himself, the appellant submitted to the jurisdiction of the Court and is accordingly debarred from questioning it now. However, it is well established that total absence of jurisdiction, can never be waived by the parties nor can an illegality in an order be cured by the consent of parties.
13. In the light of the foregoing discussion, we hold that the order dated 21-2.1945 was a nullity and cannot bar the suit subsequently filed by the appellant on the principles of res judicata and the suit was, therefore, maintainable. The judgment of the Division. Bench of the High Court dated 16-12- 1968 in appeal before us, as well as the judgment passed by the learned Single Judge in the Second Appeal dated 5-4-1962 are set aside. The suit shall be remanded to the trial Court for decision on merits according to law. Since there was no contest by the respondent, there will be no order as to costs. A I A, 1932 Lab. 214 AIR 1934 P C 205 PLD 1968 SC 2411 2 3