' This revision petition has a chequered history: On 27-4-1977 there was passed a preliminary decree for possession through redemption in favour of the plaintiffs-mortgagors 2 to 5 as against defendants-mortgagees in respect of 3/4th share in the land on payment of Rs,825 within fifteen days while the suit of plaintiff-mortgagor No,1 was dismissed to the extent of his share. It is on record that mortgagors/decree-holders have deposited the amount of mortgage within the prescribed period. The decree was appealed against by the mortgagees/judgment-debtors whose appeal was dismissed by the learned District Judge on 16-3-1978. However, they succeeded in their revision in the High Court wherefrom the case was remanded to the Appellate Court by an order dated 13-1-1979 with direction of impleading necessary parties to the appeal. The appeal was, however, subsequently dismissed as withdrawn on 20-9-1981.
2. There was made an application for a final decree on 17-7-1987 stating therein that the mortgagors/decree-holders had since deposited the mortgage amount in Court and that only possession of the property was now to be delivered to them. This application was contested by the mortgagees/judgment-debtors on a number of grounds that the appeal was withdrawn since the decree-holders had sold the suit property to Shah Jehan judgment-debtor while the other half was sold by Muhammad Hassan to Shah Jehan. They also raised the objection of limitation that an application for a final decree was to be presented within three years. The said application was sought withdrawn with a permission to file a fresh application due to formal and technical defects that on one hand the Court allowed the application but instead passed the orders of unconditional withdrawal of the application for final decree against which the decree-holders sought a redress by way of appeal before the District Judge who, on acceptance of the appeal, remanded the case for decision of the application on merits. The application was, however, later on dismissed by the learned trial Court mainly on the point of limitation having considered it an application for final decree to be filed within three years contrary to the contention that it was an application for execution of a decree and has been rightly filed within six years. The Court has further referred to the statement of Alamzeb, Advocate who has referred to the compromises dated 11-1-1979 and 4- 7-1979 in his statement in the presence of Gul Sher decree-holder and Shah Jehan respondent and his counsel, also that at the time the decree-holders had not objected to the legality of the compromises. There has, however, not been recorded any adjudication by the Court vis-a-vis those compromises except observations that if the decree-holders were aggrieved thereby they were better to prefer an application under section 12(2), C.P.C. In the Court of District Judge but that instead they filed the present application for a final decree which he found hopelessly time-barred and as such dismissed it. Later on the mortgagors' appeal was also dismissed by the learned District Judge under observations that respondents' appeal was dismissed as withdrawn on the strength of the statement of Alamzeb, Advocate informing the Court that the plaintiffs-petitioners have transferred the disputed property by compromise deeds and that he had made the said statement in the attendance of Gul Sher plaintiff-petitioner and Faridullah Shah the counsel for the plaintiffs-petitioners. The Court had also noticed that Gul Sher plaintiff-petitioner or for that matter the other decree-holders had not onward challenged the compromise deeds and they had also not raised objection to the statement of Alamzeb, Advocate recorded in their attendance. On the point of limitation the Court held that the application for grant of final decree was filed after the expiry of a period of three years and as such he was to uphold the judgment and order of the trial Court on the point of limitation confirming that the application was time-barred.
3. After hearing the learned counsel for the parties it was found out a case that the Courts below did not dispose of the subject-matter on its facts and merits as to have called for and recorded evidence in the case vis-a-vis the execution of the compromise deeds and their effect on the impugned decree for redemption passed in favour of the petitioners as against the respondents.
The Courts below have resolved the factual controversy in the case on the mere statement of the counsel for the respondents to withdraw from their appeal in view of the compromise deeds which statement was allegedly recorded in the attendance of Gul Sher petitioner No,1 and his counsel Faridullah Shah, Advocate. One would not approve it as a correct procedure for the determination of the factual controversy. In fact there shall be necessitated the proof of the execution of the compromise deeds and their effect on the judgment and decree of redemption by independent evidence.
4. On the point of limitation reference was made to the judgment of the District Judge that the decree-holders/petitioners had requested him that in fact they had made an application for execution of the decree for possession through redemption having already deposited the mortgage amount and that nothing further was to be done by them and that accordingly their application be treated as an application for execution instead their application having been titled as an application for final decree. The said request was neither repelled nor otherwise discussed by the learned District Judge in his judgment. The mortgagors/petitioners were once again to agitate the same contention/request in this Court that in fact theirs was a decree for possession through redemption on payment of a specified amount, since deposited by them, and thus their decree assumed finality to be followed by delivery of possession through execution.
5. Reference was made to the Form of the preliminary decree,:, in question and it was found not drawn on the prescribed Form No, VII-C Appendix 'D', rather the decree-sheet was drawn on the pattern of a preemption decree with the only addition of word 'preliminary' that on the deposit of the mortgage amount within the prescribed period the decree shall assume the status of a final decree. Preliminary decree in question drawn in vernacular is translated as below for ready reference:-- "In a suit for possession through redemption of the suit land with description in the heading of the plaint on payment of the mortgage amount, that vide the judgment of the Court of the day a preliminary decree for possession through redemption in respect of 3/4th share in favour of the plaintiffs Nos.2 to 5 as against the defendants on payment of mortgage amount in the sum of Rs,825 is hereby passed, while the plaintiff No,l's suit with respect to his share is dismissed. The mortgage amount is to be deposited within fifteen days. Parties are left to bear their own costs."
6. It was contended that the only word 'preliminary' was inserted in the decree otherwise it was to read as a final decree entitling the decree-holders to the delivery of possession on deposit of the mortgage amount within the prescribed period. The decree also did not contain a penal clause in the deposit of the mortgage amount within the prescribed period in which situation even if the amount of mortgage is deposited on the expiry of the prescribed period the decree of redemption shall not be rendered redundant.
7. In AIR 1922 Allahabad 479 a mortgagor has brought a suit for redemption of a mortgage and has also deposited in Court the amount due on the mortgage the Court found that the mortgage set up by the plaintiff has been proved and deposit also made, it, therefore, did not pass a preliminary decree for redemption to be later on followed by a final decree for redemption but straightaway passed a final decree which was commented by the High Court as follows:-- "After considering the provisions of Rules 7, 8 and 9, I infer that there might be cases in which, when the Court finds that the mortgagee has been paid, a decree for redemption can be passed at once. No injustice has been done to the defendant, who could have succeeded only on the ground which he took, namely, that there was no such mortgage as was put forward by the plaintiff. This appeal which has been preferred is purely a matter of form.
' Even if a preliminary decree were passed and followed by a final decree, the result would be only a prolongation of the proceedings without any good being done to either party, except that by this delay what the mortgagee really wants is a longer period of possession over the property forgetting that the mortgagor having already deposited the money in Court he may have a claim for mesne profits for being kept out of possession wrongfully, by the mortgagee. In my opinion the prolongation of this proceeding is neither in the interest of the plaintiff-mortgagor nor the defendant-mortgagee. I, therefore, dismiss this appeal with costs."
8. In AIR 1924 Lahore 635 there was a suit for redemption in which a decree for possession of the land in suit on payment of a certain sum within six months from the date of the decree was passed that the plaintiff paid the decretal sum into Court more than six months after the date of the decree and applied for possession of the land. In the case the decree has, however, not been.
Drawn up in a form of the preliminary decree as provided by Rule 7 of Order 34, C.P.C. The Court held that a decree which was silent as to the effect of the non-payment of the decretal amount within the time limit the decree-holder shall be entitled to enforce his decree at any time within the period of limitation prescribed for execution of the decree notwithstanding the fact that the amount was deposited after fixed date. The Court also held that where a decree-sheet was drawn showing that it was a decree for possession of the property and payment of a certain amount of money within a certain time, then Order 34, Rule 7, C.P.C. Shall have no application to such a case.
The Court further held that for the application of Order 34, Rule 7, C.P.C. a decree-sheet must have been drawn up in the form as provided by the Rule.
9. To sum up the foregoing discussion this Court would treat the mortgagors' application as one for execution of the decree and not for a final decree because the so-called preliminary decree was not drawn on the pattern of a preliminary decree provided and prescribed under Order 34, Rule 7, C.P.C. It was a decree for possession through redemption on payment of a specified amount within a prescribed period and that on the deposit of the said amount within the time the decree assumed finality and was capable of execution and the application filed by the mortgagors/decree-holders was to be treated as an application for execution of the decree and not for a final decree, having been filed within a period of six years of the date of decree and, as such, the findings of the Courts below on the subject issue are hereby set aside and the application for execution is held to be within time. Since the judgment-debtors have also raised objections to the executability of the decree having been allegedly compromised by the deeds in which regard this Court has held that the determination of the said aspect shall necessitate evidence, hence this Court shall remand the case to the executing Court for determination of the said aspect of the case. Parties are, otherwise, directed to bear their own costs.