Supreme Court of India

K. PARAMESWARAN PILLAI(DEAD)versusK. SUMATHI@ JESIS JESSIE JACQUILINE & ANR.

Citation: 1993 INSC 287
Decided: 7 September 1993
Disposal: Dismissed
Bench: KULDIP SINGH

Holding

For a usufructuary mortgage, the right to redemption remains until a final decree is passed or a sale is confirmed, and the limitation period for filing a final‑decree application begins only after the outer time fixed in the preliminary decree expires; consequently, the 1979 application was barred by limitation.

Summary

The case concerned a usufructuary mortgage created in 1947 and a second mortgage in 1966, where the mortgagee filed a redemption suit and obtained a preliminary decree requiring payment by May 6, 1970. The mortgagee later withdrew an earlier interlocutory application and, after the mortgagor purchased the property, filed a new application in 1979 for a final decree of redemption. The respondent argued that the application was barred by limitation and that the earlier withdrawal barred any further application. The Supreme Court held that for a usufructuary mortgage the right to redemption persists until a final decree is passed or a sale is confirmed, and the limitation period for filing a final‑decree application begins only after the outer time fixed in the preliminary decree expires. Since the outer limit was not extended, the 1979 application was barred by the three‑year limitation under Article 137 of the Limitation Act, 1963, and the High Court’s order setting aside the final decree was affirmed. The appeal was dismissed without costs.

Issues considered

The applicability of the three‑year limitation period under Art. 137, Limitation Act, 1963 to an application for a final decree in a usufructuary mortgage.
Whether the withdrawal of an earlier interlocutory application bars a subsequent application for a final decree.
Whether a separate suit for redemption filed by the mortgagor bars the mortgagee’s application for a final decree.
The interpretation of Order XXXIV Rules 7 and 8 of the CPC with respect to redemption of a usufructuary mortgage.

Legislation cited

Code of Civil Procedure, 1908s. Order XXXIV Rule 2(2), s. Order XXXIV Rule 3, s. Order XXXIV Rule 4(2), s. Order XXXIV Rule 5(1), s. Order XXXIV Rule 7, s. Order XXXIV Rule 8
Limitation Act, 1963s. Article 137 (Schedule)
Transfer of Property Acts. Section 93

Subjects

Usufructuary mortgageRedemptionLimitation periodCivil Procedure CodeFinal decreePreliminary decreeMortgageeMortgagorBar of limitationWithdrawal of application

Judgment

K. PARAMESWARAN PILLAI(DEAD) A
v.
K. SUMATHI@ JESIS JESSIE JACQUILINE & ANR.

SEPTEMBER 7, 1993

[KULDIP SINGH AND K. RAMASWAMY, JJ.) B

Civil Procedure Code 1908-0rder XXXW, Rules 7 and 8, 2(2), 4(2),
3, 5( 1}-Redemption of Usufructuary Mortgage-Final decree for redemption
not passed-Held, Mortgagor may redeem mortgage at any time before final
decree is passed or sale made in furtherance thereof is confirmed-Mortgagor C
may seek redemption even by way of separate suit-Rules 2(2), 4(2), 3, 5(1).

Limitation Ac~ 196rArtic/e 137 of Schedule 1-Laches- Held, Court
has power and jurisdiction to entertain applicatioll.for final decree till passing
of the final decree and its execution or till remedy is ba"ed by limitation.
D
A usufructuary mortgage was created by one 'K' in favour of
appellant's is predecessor in interest in respect of a house. In 1966, the
mortgagor created a second mortgage in favour of the appellant with a
direction to redeem the first mortgage and to remain in possession for 10
years. In the redemption suit filed by the appellant, a preliminary decree E
was passed directing him to deposit Rs.13,467.15 in the Court on or before
May 6, 1970. On appeal, the appellant's liability was increased. On January
11, 1972 he filed an interlocutory application to pass final decree deposit-
ing only the amount quantified in the preliminary decree. On second
appeal by the mortgagor, the decree was modified enhancing the liability.
In the meantime, a suit for title filed by one T. impleading the mortgagor, F
the appellant and others was decreed by the Trial Court but this was set
aside by the High Court. In the meanwhile, the appellant got interlocutory
application filed by him dismissed and withdrew the deposited amount,
while the respondent initially purchased the equity of redemption of
mortgage from the mortgagor, and later the hypotheca (the house proper- G
ty) by a registered sale deed dated February 1, 1979, and thus became the
mortgagor.

The appellant filed an interlocutory application on February 5, 1979
to pass final decree in the redemption suit O.S. 400 of 1966, depositing a
sum of Rs. 14,957.85. Which the respondent resisted mainly on the grounds H
173
174 SUPREME COURT REPORTS (1993] SUPP. 2 S.C.R.

A of bar of limitation and non-maintainability. She also filed an independent
suit for redemption of the mortgages or alternatively for foreclosure of the
appellants' redemption suit.

The trial court granted final decree which was affirmed on appeal.
The High Court set aside the final decree as the appellant had withdrawn
B the interlocutory application unconditionally and without leave of the
Court. It also held that the redemption suit filed by the respondent
operated as a bar to the maintainability of the application for final decree.
Hence the appeal by the mortgagee.

c Dismissing the appeal, this Court

HELD : 1. By a reading of Order XXXIV, Rules 7 and 8, the
legislative intent is clear that the plaintiff has been empowered to make an
application either for foreclosure or sale of a hypotheca or redemption of
D any other mortgage except usufrnctua1y m01tgage. The plaintiff need not
make any application for extension of time fixed in the preliminary decree.
The outer limit for an usufructuary mortgagor for making payment of the
amount due under the preliminary decree is passing of the final decree or
the date of confirmation of the sale. At any time before passing the final
decree or confirmation of the sale held in pursuance of the final decree the
E plaintiff usufructuary mortgagor has been given right to make payment of
the redemption money due under preliminary decree and the subsequent
liability incurred thereon. [180-C-F]

Badapuratti v. Valiyaraja, ILR 25 Mad 300 at 307 and Motilal v.
F Thakur Ujagar Singh, A.I.R. (1928) PC 137, referred to.

2. In the case of preliminary decree for redemption of usufructurary
mortgage no limitation begins to run until deposit is made though there
is a conditional preliminary decree and default was committed by the
mortgagor for compliance thereof. Order XXXIV Rule 8(3)(b) expressly
G excludes the right to the mortgagee to apply for foreclosure or sale or
redemption in the case of usufructuary mortgage. Necessary consequence
is that so long as the right subsists, though there is delay incompliance of
the condition imposed in the preliminary decree, the right of redemption
to the mortgagor is not lost. It will be barred only on expiry of the period
H of limitation prescribed under the Limitation Act. [pp. 182-D-E; 183-A]
K.P. PILLAI v. K. SUMATHI [RAMASWAMY, J. J 175

3. The right to redemption of the first mortgage enured to the A
respondent mortgagor. So long as the final decree for redemption is not
passed, at any time before final decree is passed or its sale made in
furtherance thereof is confirmed, it is open to the respondent mortgagor
to redeem it. So long as the remedy for redemption is not lost the
mortgagor would avail of and seek redemption of the mortgage, even by B
separate suit. (183-D-E]

4. The mere dismissal of the first application for non-prosecution
and withdrawal of the redemption money deposited thereunder per se
creates no bar to entertain second application. Till date of passing the final
decree and execution or till its remedy is barred by limitation under Article C
137 of the Schedule to the Limitation Act, 1963 the Court has power and
jurisdiction to entertain the application to pass the final decree. At any
time before the remedy is barred, it is open to the plaintiff to deposit the
redemption money under the preliminary decree. (183-H; 184-A-B]

5. In the instant case, the preliminary decree fixed the outer limit for D
deposit of the redemption money as on May 6, 1970 and the same was not
extended by an order of the Court and the interlocutory application was
filed for passing the final decree on April 5, 1979 by which time the remedy
to pass final decree has been barred by limitation. (183-F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8of1986. E

From the Judgment and Order dated 4.10.85 of the Madras High
Court in S.A. No. 1851 of 1982.

G. Viswanatha Iyer, S. Balakrishnan, Mrs. Revathy Raghltvan and S.
Prasad for the appellant. F

A.T.M. Sampath, P. Kesava Pillai and M.K.D. Namboodri for the
Respondents.

The Judgment of the Court was delivered by
G
K. RAMASWAMY, J. This appeal by special leave arises against the
judgment of the Madras High Court in Second Appeal No. 1851 of 1982
dated October 4, 1985. The appellant-plaintiff now becomes puisne
mortgagee. The respondent-5th defendant transposes as mortgagor. The
facts are may; proceedings are countless and orders are numerous creating H
176 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A bundle of confusions. To clear the cloud and to have clearity, it is neces-
sary, after ·weeding out the irrelevant, to state the material facts as under:

The hypothica belongs to a house known as T.K.M. One Krishnan,
the eldest male member of that house, created on October 29, 1947 an
usufructuary mortgage in favour of one Laxminarain Pillai and appeallant
B is one of the successors in interest. Krishnan created a second mortgage
on Feb. 12, 1966 in favour of the appellant with a direction to redeem the
first mortgage and to remain in possession for 10 years. On its footing the
appellant laid O.S. No. 400 of 1966 for redemption of the mortgage. The
trial court while granting preliminary decree directed to deposit into the
c court on or before May 6, 1970 a sum of Rs. 13,467.15 Paise. The mortgagor
and the mortgagee filed first appeals and the appeal of the mortgagor was
allowed increasing the appellant's liability and dismissed the appellant's
appeal. On January 11, 1972 the appellant filed I.A. No. 58 of 1972 to pass
final decree depositing only the amount quantified in the . preliminary
decree. On second Appeal by the mortgagor, the decree was modified
D enhancing the liability. In the meanwhile one T. filed a suit impleading
Krishnan, the appellant and all others claiming title to the property.
Though the trial court decreed the suit, the High Court allowed the appeals
of the appellant, Krishnan and others and set aside the trial court's decree
on Feb. 17, 1978. In the meanwhile the appellant got dismissed his I.A. No.
E 58/72 and withdrew the amount deposited, while the respondent purchased
initially the equity of redemption of the mortgages from Krishnan and later
on purchased the hypothica by a registered sale deed dated Feb. 1, 1979.
Thus she became mortgagor. The appellant filed I.A. No. 549 of 1979 on
Feb 5, 1979 to pass final decree in O.S. No. 400 of 1966 depositing a sum
of Rs. 14,957.85 which the respondent resisted inter alia on two main
F grounds, namely, bar of limitation and non-maintainability. The respondent
also filed an independent suit for redemption of the mortgages or alterna-
tively for foreclosure of appellants' redemption suit. The trial court granted
final decree which was affirmed on appeal. The High Court without going
into the question of limitation, accepted the respondent's contention that
G appellant is not entitled to file the Second application as he had withdrawn
I.A. No. 58/72 unconditionally and without leave of the court and set aside
the final decree. It also found that the redemption suit filed by the respon-
dent operates as a bar to the maintainability of the application for final
decree.

H
KP.PILLAI V. K.SUMATHI[RAMASWAMY,J.] 177

Sri Vishwanatha Iyer, appellant's learned senior counsel contended A
that the approach of the High Court is clearly illegal. Till final decree is
passed, the appeilant is entitled to deposit the redemption money. No
limitation is prescribed to file an application for redemption of usufruc-
tuary mortgage. The application is in time from the date of the second
appeal. The withdrawal of earlier application is neither a bar for the second
application nor of the redemption suit of the respondent. Sri Sampath, the
B
learned counsel for the respondent contended that the trial court fixed the
time for depositing the quanitified redemption amount; the appellant could
file an application for passing the final decree within three years from May
7, 1970. The appellant neither sought time for extension, nor filed it within
three years from that date. The appellant, also having withdrawn the first c
application and the amount unconditionally, without leave of the court, is
not entitled to file a second application. The High Court, therefore, is right
in dismissing the application. In any event the application is barred by
limitation. To resolve the legal tangle, it is necessary to set out the relevant
provisions of Order 34 Rule 7 & 8 C.P.C., 1908, which provides thus :
D
7. "(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 - E

(i) principal and interest on the mortgage,

(ii) the costs of suit, if any, awarded to hiin, and

(iii) other costs, charges and expenses properly incurred by him: F
upto that date, in respect of his mortgage-security; together with
interest thereon; or

(b) declaring the amount so due at that date; and

(i) if the plaintiff pays into the 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 counter-
signs the account .......... . H
178 SUPREME COURT REPORTS (1993) SUPP. 2 S.C.R.

A (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 cost, charges, expenses and interest.
B
Under Rule 8 Sub-rule (1) procedure has been provided for passing
final decree thus :

"(1) Where, before a final decree debarring the plaintiff from all
rights to redeem the mortgaged property has been passed or before
c the confirmation of a sale held in pursuance of a final decree
passed under sub-rule (3) of this rule, the plaintiff makes payment
into Court of all amounts due from him under sub-rule (1) of rule
7, the court shall, on application made by the plaintiff in this behalf, j·
pass a final decree, or, if such decree has been passed, an order -
D
(a) ordering the defendant to deliver up the documents referred
to in the prclimianry decree, and, if necessary -

(b} ordering him to re-transfer at the cost of the plaintiff the
mortgaged property as directred in the said decree, and also if
E necessary -

Sub-rule (2) is not relevant, hence omitted.

F Sub-rule (3) provides thus :

"(3) Where payment in accordance with sub-rule (1) has not been
made, the court shall, on application made by the defendant in this
behalf -
G (a) in the case of a mortgage by conditional sale or of such an
anomalous mortgage as is hereinbefore referred to in rule 7, pass
a final decree declaring that the plaintiff and all persons claiming
under him are debarred from all rights to redeem the mortgaged
property and also if necessary, ordering the plaintiff to put the
H defendant in possession of the mortgaged property; or
K.P. PILLAI v. K. SUMATHI [RAMASWAMY, J.] 179

(b) in the case of any other mortgage, not being a usufructuary A
mortgage, pass a final decree that the mortgaged property or a
sufficient part thereof be sold, and the proceeds of the sale (after
deduction therefrom of the expenses of the sale) be paid into court
and applied in payment of what is found due to the defendant, and
the balance, if any, be paid to the plaintiff or other persons entitled
to receive the same."
B

Order 34 Rule 2(2); in a suit for foreclosure; Rule 4(2), in a suit for sale
and Rule 7(2); in a suit for redemption; provides that the court may on
showing good cause, extend time fixed in the preliminary decree, from time
to time, upon such terms to be fixed, at any time before the final decree is c
passed under Order 34 Rule 3; Rule 5(1) and Rule 8(3) respectively for
the payment of the amount found or declared due. The outer limit fixed
by these rules for payment of redemption money is the extended time by
order of the court in the interregnum or passing the final decree. In
Badapuratti v. Valiyaraja, ILR 25 Madras 300 at 307, a full bench of five D
judges held that the right of redemption granted in the preliminary decree
subsists till the final decree is made. The right of redemption is only
~xtinguished when an order is made in that behalf (within sec. 93 of
Transfer of Property Act) udner the relevant clauses in Order 34. In
Motilal v. Thalatr Ujagar Singh, AIR (1928) P.C. 137, the Judicial Commit- E
tee held that under Order 34 Rule 3(2) suit for foreclosure, the plaintiff
has to show sufficient cause for extension of time. In its absence the final
decree would follow. In that case neither an application for extention of
time fixed in the preliminary decree was sought for nor payment was made.
• He offered to pay, if the time was extended. Rejecting the request, final
<'
decree was passed. In execution an objection was raised and the High F
Court while holding that no good cause was shown for extention, allowed
time for making payment on the prevailing notions of belief by the
mortgagors that time could be extended automatically. It was negatived by
the Privy Council and the appeal was allowed.
G
Under Order 34 Rule 7(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
passing of a final decree for foreclosure or sale, as the case may be, extend
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 cost, H
180 SUPREME COURT REPORTS [1993] SUPP. 2 S.C.R.

A charges, expenses and interest. Sub-rule (3) of Rule 8 postulates that on
the default committed by the plaintiff, the defendant has been invested with
a right to make an application to pass final decree. Clause (a) of sub-rule
(3) of Rule 8 covers the field of passing final decree of a mortgage by
conditional sale or of such an anomalous martgage declaring that the
B plaintiff and all persons claiming under him are debarred from all rights
to redeem the mortgaged property. Clause (b) covers cases of "any other
mortgage" but not being usufructuary mortgage to pass a final decree that the
mortgage property or a sufficient part thereof be sold and the sale
proceeds, after deducting therefrom the expenses of sale, be paid_ into court
and the sale proceeds be applied to discharge the mortgaged debt, etc. The
c legislative intent, thereby, is clear that the plaintiff has been empowered to
make an application either for foreclosure or sale of a hypothica or
redemption of any other mortgage except usufructuary mortgage. By
operation of sub-rule (1) of Rule 8 where before a final decree debarring
the plaintiff from all rights to redeem the mortgaged property has been
D 'passed or before the confirmation of a sale held in pursuance of a final
decree passed under sub-rule (3) of Rule 8, the plaintiff makes payment
into court of all amounts due from him, the final decree is discharged. The
resultant operation of the law would be that in the case of usufructuary
mortgage, the plaintiff need not make any application for extention of time
E fixed in the preliminary decree. The mortgagee/defendant has no right to
make an application to foreclose the right of the plaintiff or sale of
hypothica declaring that the plaintiff has been debarred from making
payment in court or to proceed further. At any time before passing the
final decree or confirmation of the sale held in pursuance of the final
F decree the plaintiff usufructuary mortgagor has been given right to make
payment of the redemption money due under preliminary decree and the
subsequent liability incurred thereon. The outer limit for making such
payment is passing of the final decree or confirmation of the sale made in
furtherance thereof. The final decree for foreclosure or sale or redemption
G in relation to other mortgages, the right to payment has been hedged with
the duty to deposit the money declared or quantified in the preliminary
decree within the time specified under the preliminary decree or extended
period from time to time till final decree debarring the plaintiff from
redemption etc. is passed. The outer limit for an usufructuray mortgagor
for making payment of the amount due. under the preliminary decree,
H
K.P. PILLAI v. K. SUMATHI [RAMASWAMY, J.] 181

thereby, is passing of the final decree or the date of confirmation of the A
sale.

The appellant is one of the successors in interest of the mortgages
of the usufructuary mortgagee. Consequent to subrogation, the appellant
became a mere puisne mortgagee and the respondent, after the preliminary
decree, transposed herself to be mortgagor. The preliminary decree B
declared thus: "Clause 2:. And it is hereby ordered and decreed as follows:-

(1) That the plaintif do pay into court on or before the 6th day of
May, 1970 or any latter date upto which time for payment may be extended
by the court, the said of sum Rs. 13,467.15. C
(2) That, on such payment and on payment thereafter before such
date as the court may fix, of such amount as the court may adjudge due in
respect of such costs of the suit and such costs, charges and expenses as
may be payable under Rule 10, together with such subsequent interest as
may be payable under Rule 11 of Order 34, of the First Schedule to the D
c.p:c. the defendants shall bring into court all documents in his possession
or power relating to the mortgaged property in the plaint mentioned and
all such documents shall be delivered over to the plaintiffs or to such
person as he appoints and the defendants shall, if so required, recovery or
retransfer the said property free from the mortgage and clear of and from E
all incumbrances created by the defendants or any person claiming under
him or any person under whom he claims and shall if so required, deliver
up to the plaintiff acquire and peaceful possession of the said property.

(3) And it hereby further ordered and decreed that, in default of
payment as aforesaid, the defendants may apply to the court for a final F
decree for the sale of the mortgaged property; and on such application being
made, the mortgaged property or a sufficient part thereof shall be directed to
be sold; and for the purpose of such sale the defendant. shall produce
before the court or such officer as it appoints all documents in his posses-
sion if power relating to the mortgaged property.
G
(4) And it is hereby further ordered and decreed that the money
realised by such sale shall be paid .into court and shall be duly applied
(after deduction therefrom of the expenses of the sale) in payment of the
amount payable to the defendants under this decree and under any further
orders that may be passed in this suit and in payment of any amount which H
182 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A the court may adjudge due to the defendant in respect of such costs of the
suit, and such costs, charges and expenses as tllay be payable under Rule
10, together with such subsequent interest as may be payable under rule
11 of Order 34 of the First Schedule to the C.P.C. and that balance, if any,
shall be paid to the plaintiffs or other persons entitled to receive the same.
B (5) And it is hereby further ordered and decreed and that if the
money realised by such sale shall not be sufficient for payment in full of
the amount payable to the defendants aforesaid, the defendants shall be at
liberty (where such remedy is open to him under the terms of his mortgage
and is not barred by any law for the time being in force) to apply for a
c personal decree against plaintiffs or the amount of the balance; and that
the parties are at liberty to apply to the court from time to time as they
may have occassion and on such application or otherwise the court may
give such directions as it thinks fit."

D In the case of usufructuary mortgage sub-rule (b) of rule (3) of Rule
8 eiqJressly excludes the right to the mortgages to apply for foreclosure or
sale or redemption. Necessary consequence is that so long as the right
subsists, though there is delay in compliance of the condition imposed in
the preliminary decree, the right of redemption to the mortgagor is not
lost. It will. be barred only on expiry of the period of limitation prescribed
E under the Limitation Act. The reasons are obvious. Order 34 rule 8(3) does
not give any right to the mortgagee but the right is given only to the
mortgagor, to seek redemption of the usufructuary mortgage in a decree
under rule 8(3) of order 34. The mortgagee, having been in possession and
enjoyment of the hypothica is not disabled by the preliminary decree. On
F the other hand the libaility continues to subsist against the mortgagor.
Therefore, it is upto the mortgagor to redeem the mortgage. Till then his
liability under mortgage continues to run on the estate. It is, therefore,
clear that the limitation to file an application under Order 34 Rule 8(1) to
pass a final decree for redemption, other than the preliminary decree for
redemption of usufructuary mortgage, starts running and continues to run
G its course from the date of expiry of the period fixed in the preliminary
decree, unless it is stayed or suspended or the time prescribed in the
preliminary decree is extended by an order of the court. In its absence on
expiry of the limitation of three years from the date fixed in the preliminary
decree is expired under Art. 137 of the Schedule to Limitation Act 1963
H (Act 181 of Schedule 2 of Old Act), the plaintiff is debarred to enforce the
K.P. PILLAI v. K. SUMATHI [RAMASWAMY, J.] 183

right to pass the final decree. But in the case of preliminary decree for A
redemption of usufructuary mortgage no limitation begins to run until
deposit is made though there is a conditional preliminary decree and
default was committed by the mortgagor for compliance thereof.

The question, therefore, is whether the application filed by the
appellant is barred by limitation. As seen, the appellant is only puisne B
mortgagee for redemption of the first usufructuary mortgage with a view
to secure his right to remain in possession for 10 years in terms of the ,
conditions in the second mortgage. The preliminary decree extracted above
does show the real legal character of the appellant as mortgagee and it is
one of simple decree for redemption and in default for sale of the c
hypothica. As already held in a suit for redemption of usufructuary
·mortgage the mortgage~ has nq right to bring the hypothica to sale or to
foreclose the mortgagor debarring the mortgagor from redemption of
usufructuary mortgage. On the other hand the right to redemption of the
first mortgage enured to the respondent mortgagor. So long as the final D
decree for redemption is not passed, at any time before final decree is
passed or sale made in furtherance thereof is confirmed, it is open to the
respondent mortgagor to redeem it. Instead of availing the remedy under
Order 34 Rule 8(1) the appellant filed a separate suit. So long as the
remedy for redemption is not lost the mortgagor would avail of and seek
redemption of the mortgage, even by separate suit. E

Under Art. 137 of the Schedule to the Limitation Act 1963 (Act 181
of Schedule II of Old Act) three years period began to run when the right
to apply accrued which began on May 7, 1970. The preliminary decree was
drafted in Form No. 7-C (preliminary for redemption where on default of p
payment by mortgagor a decree for sale is passed). The preliminary decree
since fixed the outer limit for deposit of the redemption money as on May
6, 1970 and the same was not extended by an order of the court and I.A.
No. 549 of 1979 was filed for passing the final decree on April 5, 1979 by
which time the remedy to pass final decree has been barred by limitation.
G
The proceeding in the preliminary decree does not get terminated ·
by dismissal of I.A. No. 58 of 1'972, on June 26, 1975 or for non- prosecu-
tion. Till date of passing the final decree and executed or till its remedy is
barred by limitation under Art. 137 of the schedule to the Limitation Act,
1963 the court has power and jurisdiction to entertain the application to H
184 SUPREME COURT REPORTS [1993) SUPP. 2 S.C.R.

A pass the final decree. At any time before the remedy is barred, it is open
to the plaintiff to deposit the redemption money under the preliminary
decree. The dismissal of the earlier application or non-prosecution, there-
fore, does not per se bars the right of the plaintiff. But if remedy to enforce
preliminary decree for the redemption is barred by the limitation, there-
after the right remains unenforceable. The deposit, therefore, is nonest and
B the court cannot proceed to pass final decree as the remedy is lost.
Therefore, the mere dismissal of the first application for non-prosecution
and withdrawal of the redemption money deposited thereunder per se
creates no bar to entertain second application. Equally instead of availing
the remedy of depositing the redemption amount in the pending proceed-
c ings under R'.lle 8(1) of Order 34, the respondent instituted an independent
suit for redemption. Per force, though it does not operate as bar to
maintain the application to pass final decree, court cannot proceed further
with the application. Otherwise conflicting decisions would arise giving rise
to multiplicity of proceedings. The court would stop to proceed further in
D the matter. In view of finding that the application to pass final decree is
barred by limitation, the trial court has no jurisdiction to proceed with the
application under Rule 8(3) of Order 34 and to pass final decree. Accord-
ingly, though for different reasons, the decree of the High Court, in the
Second Appeal, is legal and does not warrant interference. The appeal is
dismissed but without costs.
E
U.R. Appeal dismissed.

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