P L D 1962 (W (PLP)

Briefly stated, the facts, out of which this second appeal has arisen, are as follows: ‑ The land in dispute, which is about 31 kanals in area and situated in village Atawa, Tehsil and District Gujranwala, was owned by Maula Bakhsh alias Maula Dad, who mortgaged it by means of a registered mortgage deed dated the 23rd September 1913, in consideration of a sum of Rs. 400, in favour of one Roshan Din. Subsequently, Maula Dad transferred the equity of redemption in favour of Sultan Ali respondent. Sultan Ali, as representative‑in‑interest of the mortgagor filed a suit in the year 1941, for redemption of the mortgage against Muhammad Aslam and Muhammad Akram, grandsons of the mortgagee, who appears to have died in the meantime. He was granted a decree by the trial Court in the year 1942 and was asked to deposit a sum of Rs. 200 in the Court. When the matter went up in appeal, to the Senior Sub‑Judge, he modified the decree of the trial Court and directed the mortgagor to deposit a sum of Rs. 700 on account of mortgage money, by the 6th July 1942. A second appeal was filed m the High Court and while that appeal was pending, the Court directed the mortgagor to deposit a further sum of Rs. 400, by the 31st July 1942, in addition to the sum of Rs. 200 paid by him already. This order does not appear to have been complied with and, on the 12th January 1944, the second appeal was dismissed by the High Court. Although the preliminary decree granted by the trial Court provided that if the mortgagor did not pay the sum of Rs. 200 by the 1st June 1942, his suit shall stand dismissed, and although the same direction was given by the Senior Sub‑Judge in appeal, an application was moved by Sultan Ali asking for a final decree for redemption, presumably under Order XXXIV, rule 8, of the Code of Civil Procedure. Under the same provision of law, the mortgagee's representatives‑in‑interest, Muhammad Aslam and Muhammad Akram, filed an application, in which a prayer was made that the mortgagor be debarred from redeeming the land in dispute, as he had not deposited the amount in the Court in accordance with the terms of the decree. Both these applications were disposed of by Mr. Muhammad Abdullah Cheema, Sub‑Judge 1st Class, Gujranwala (the trial Court), by mans of an order dated the 21st February 1945. The application of the mortgagor was dismissed, while that of the mortgagees accepted and it was declared by the Court that Sultan Ali mortgagor was debarred from redeeming the land in dispute.

2. After the disposal of the two applications under Order XXXIV, rule 8, of the Code of Civil Procedure, Muhammad Aslam and Muhammad Akram transferred their rights, as mortgagees, in favour of Khushi Muhammad appellant. Sultan Ali respondent filed a second suit for redemption of the mortgage on the 24th July 1959. This suit was dismissed by the trial Court on the 8th March 1961. The mortgagor, Sultan Ali, filed an appeal against the judgment and decree of the trial Court. This was accepted by the District Judge, Gujranwala who reversed the finding of the trial Court, and holding that the mortgagor was entitled to redeem the mortgage, remanded the case for _ decision on merits. It is against this judgment of the District Judge that the present second appeal has been filed.

3. The trial Court's view was that the suit was barred by the principle of res judicata, and in the presence of the order dated the 21st February 1945 passed by Mr. Muhammad Abdullah Cheema, who declared that Sultan Ali was debarred from redeeming the land, the matter could not be inquired into. The District Judge was, however, of the view that "to the extent that the Sub‑Judge issued a direction for payment by a certain date the order was a clear nullity and could be ignored with impunity." He further held that "none of the provisions contained in Order XXXIV, C. P. C. concerning mortgages of immovable property supports the present mort gagee's contention that the Sub‑Judge had the jurisdiction to issue the direction requiring the payment of the mortgage money by a certain date or inserting the penal clause that failure to make payment of the mortgage money could result in the dismissal of the suit or, what is worse, debar the mortgagor from getting the land redeemed at any time."

4. The learned counsel for the appellant, while conceding that in accordance with the proviso to the first paragraph of section 60 of the Transfer of Property Act, the right of redemp tion conferred by the provision of law could be extinguished only by the Act or the parties or by the decree of the Court, contended that as the Senior Sub‑Judge, Mr. Muhammad Abdullah Cheema, by means of his order dated the 21st February 1945, had declared that Sultan Ali respondent was debarred from redeeming the land in suit, no second suit for redemption could lie. In reply, the respondent's counsel contended that as the mortgage was of a usufructuary kind and as no order debarring the mortgagor from redeeming the mortgaged property could be passed under Order XXXIV, rule 8 of the Civil Pro cedure Code, Mr. Muhammad Abdullah Cheema's order was without jurisdiction and, hence, a second suit for redemption did lie in spite of that order.

5. The first point, therefore, that requires to be decided is whether the mortgage is of a usufructuary kind and the second point requiring decision would be as to whether an order could be passed debarring the mortgagor from getting the mortgaged property redeemed and whether that order was binding on the parties or not.

6. So far as the first point is concerned, a reference to the mortgage deed, of which Exh. D. 2 is a copy, would show that the mortgagor did not undertake to pay personally the mortgage debt, although it was provided in that document that after the expiry of the period of ten years the mortgagor would have a right to get the property redeemed on payment of the principal mortgage money and interest, at the rate of 2% per mensem on a part of the mortgage debt. According to section 58 (d) of the Transfer of Property Act, where the mortgagor delivers possession of the mortgaged property to the] mortgagee and authorizes him to retain such possession until payment of the mortgage money and to receive the rents and profits accruing from the property in lieu of interest or in payment of mortgage money, or partly in lieu of interest anti partly in lieu of mortgage money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mort gagee. The very definition of the expression "usufructuary) mortgage", as given in section 58 (d) of the Transfer of Property Act indicates that the mortgagor is not personally liable for payment of the mortgage debt. If such an obligation exists in a transaction of mortgage, the mortgage would be either a simple mortgage, an English mortgage, a mortgage by deposit of title deeds or an anomalous mortgage. In all such cases, there must be an obligation by the mortgagor to pay the mortgage debt personally; but if no such obligation is created, the mortgage, without any doubt, would be a usufructuary mortgage. Keeping in mind the definitions of the various mortgages as given in section 58 of the Transfer of Property Act, there can be no doubt that the mortgage created by means of the mortgage deed dated the 13th of October 1913, was a usufructuary mortgage. There can also be no doubt that until the period of limitation provided by law for getting such a mortgage redeemed expired, the mortgagor had a right to get the property redeemed, unless that right was extinguished by act of the parties or by the decree of a Court.

7. The next question requiring decision is as to whether the Senior Sub‑Judge (Mr. Muhammad Abdullah Cheema) could pass an order debarring the mortgagor from getting the property redeemed, and if not, what is the effect of the order dated the 21st February 1945. According to Order XXXIV, rule 7, of the Code of Civil Procedure, in a suit for redemption, if the plaintiff succeeds, the Court has to pass a preliminary decree, ordering that accounts be taken and directing that if the amount found due from the mortgagor is paid by a date to be fixed for the purpose, the mortgagee shall deliver to the mortgagor all documents in his possession or power and shall also, if necessary, put the mortgagor in possession of the property. Sub‑rule (1) (c) (U) of this rule, which is relevant for the present purpose, lays down further that if payment of the amount found, or declared due, by the preliminary decree is not made on or before the date to be fixed for the purpose, the mortgagee shall be entitled to apply for a final decree‑ "(a) in the case of a mortgage other than usufructuary mortgage, a mortgage by conditional sale, or an anomalous mort gage, the terms of which provide for foreclosure only and not for sale, that the mortgaged 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." This sub‑rule is followed by rule 8, which lays down that where, before a final decree debarring the mortgagor from all right to redeem the mortgaged property has been passed, or before the confirmation of a sale held in pursuance of a final decree passed under sub‑rule (3), the mortgagor makes payment of all amounts due from him, on application made by him in that behalf, the Court shall pass a final decree ordering the mortgagee to deliver up the documents referred to in the preliminary decree and, if necessary, order him to re‑transfer the property, at the cost of the mortgagor and also order him to put the mortgagor in possession of the property. Sub‑rule (3) of this rule, which is relevant for the present purpose, lays down further that where payment has not been made as aforesaid, the Court shall, on application made by the mortgagee in that behalf‑ "(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 defendant in posses sion of the mortgaged property ; or (b) in the case of any other mortgage, not being a usufruc tuary 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."

8. The combined effect of sub‑rule (1) (c) (ii) of rule 7 and of sub‑rule (3) of rule 8 is‑ (1) that in the case of a mortgage by conditional sale or an anomalous mortgage, the terms of which provide for fore closure only and not for sale, on a default being made by the mortgagor in payment of the mortgage money, as ordered by the Court, an order can be passed debarring the mortgagor from redeeming the mortgaged property, and (2) 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 and not for sale, on a default being made in payment of the mortgage money by the mortgagor, a final decree for sale can be passed. From a perusal of the above‑mentioned provisions of law, no' doubt remains that neither an order for sale nor an order debarring the mortgagor from redeeming the property can be passed where the mortgage is a usufructuary mortgage, if the mortgagor makes default in payment of the mortgage money in accordance with the terms of the preliminary decree passed by tire Court. In view of what has been stated above, it seems to be quite obvious that Mr. Muhammad Abdullah Cheema was not, competent to pass an order debarring the mortgagor from getting the mortgaged property redeemed. Even if it be assumed for the sake of argument that such an order could be legally; passed by him, as the decree had not become final before the mortgagor gave an application for extension of time for payment of the mortgage money, the order passed by Mr. Muhammad Abdullah Cheema was clearly hit by the provisions of sub‑rule (1) of rule 8 of Order XXXIV of the Code of Civil Procedure. It is also obvious that if no such order had been passed, debarring the mortgagor from getting the mortgaged property redeemed, the proviso to the first paragraph of section 60 of the Transfer of Property Act could not have stood in the mortgagor's way and in spite of the fact that he failed to comply with the terms of the preliminary decree in not paying the mortgage money in time, a second suit for redemption was competent. On this point Courts have consistently taken the view that in the case of a usufructuary mortgage the right to redeem the mortgaged property is not lost where the mortgagor does not deposit the mortgage money in accordance with the terms of the preliminary decree, even though that decree lays down that in case of default in the payment of the money, the mortgagor's suit shall stand dismissed. A reference may be made in this connection to the following authorities in which this proposition of law has been laid down:‑ (1) Sita Ram and others v. Madho Lal and another I L R 42 All. 44, (2) Hari Ram and others v. Indraj and others A I R 1922 All. 377, (3) Sunka and others v. Jaru and others A I R 1923 Lah. 680, (4) Radha Kishan and others v. Radha Kishan and another A I R 1927 Lah. 9. (5) Lachhman Singh v. Natha Singh 42 P L R 560, and (6) Muhammad Azim and others v. Muhammad Sultan and others A I R 1946 Pat. 99.

9. Reference may also be made to a case decided by their Lordships of the Privy Council and reported as Raghunath Singh and others v. Mr. Hansraj Kunwar and others (A I R 1934 P C 205). In this case their Lordships held that the provision in a decree in a suit for redemption that in case of default by the plaintiff in payment his case will stand dismissed could not be construed as meaning that the plaintiff was to be debarred of all right to redeem, that the decree was an order of the Court extinguishing the right to redeem within the meaning of the proviso to section 60 of the Transfer of Property Act and that a second suit for redemption would be maintainable in such cases. Their Lordships, however, added that unless it could be said that a decree involved a decision that the mortgagor's right to redeem was extinguished, it could not operate by way of res judicata so as to prevent the Courts under section 11, Civil Procedure Code, from trying a second redemption suit.

10. If the Court had not passed an order debarring the) mortgagor from getting the mortgaged property redeemed and if the previous suit had stood dismissed on account of failure on the part of .the mortgagor to pay the mortgage money in time, there could be no doubt that a second suit was maintain able. The difficulty in the way of the respondent was, however, created by the order dated 21st February 1945, passed by Mr. Muhammad Abdullah Cheema, who declared that Sultan Ali respondent was debarred from redeeming the land in dispute. Even their Lordships of the Privy Council held in the case noted above that if a decree had been passed by which the mortgagor's right to redeem the property was extinguished, that decree operated by way of res judicata and, therefore] the Courts were prevented from trying the second redemption suit. The only argument which was advanced by the respondent's counsel to meet this part of the appellant's case was that Mr. Muhammad Abdullah Cheema acted without jurisdiction in passing the order that the mortgagor was debarred from getting the property redeemed and, hence, the order dated the 21st of February 1945, passed by him did not stand in the mortgagor's way. To support this contention, the learned counsel referred to a case of the Calcutta High Court, reported as Krishna Kishore De v. Amarnath Kshettry (47 Cal. 770), in which it was held that the decision of a Court which was void for want of jurisdiction over the subject‑matter of the suit did not operate as res judicata. In my opinion, this authority is of no help to the respondent because, in the circumstances of the present case, it cannot be held that Mr. Muhammad Abdullah Cheema acted without jurisdiction in passing the order dated the 21st February 1945. 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 debarred 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.

11. An authority more to the point in Mst. Bahar Jan Nessa v. Saijuddin Khan and others (P L D 1956 Dacca 1), in which the following passage taken from a judgment of the Supreme Court of India was cited with approval :‑ "The distinction between existence of jurisdiction and exercise of jurisdiction has not always been borne in mind and this has led to confusion. A judgment pronounced by a Court without jurisdiction is void, subject to the well‑known reser vation that when the jurisdiction of a Court is challenged, the Court is competent to determine the question of juris d1clion though the result of the enquiry may be that it has 110 jurisdiction to deal with the matter brought before it when parties are before the Court and present to it a contro versy which the Court has authority to decide, a decision not necessarily correct but appropriate to that question is an exer cise of judicial power or jurisdiction. The decision may be erroneous, but it cannot be held to be void for want of jurisdiction. A Court may have the power and right to determine the status of a thing and yet may exercise its authority erroneously ; after jurisdiction attaches in any case, all that follows is exercise of jurisdiction, and conti nuance of jurisdiction is not dependent upon the correctness of the determination. It is plain that however erroneous the order may be, it is not an order made by a Court without jurisdiction. It is, on the other hand, an order made by a Court of competent jurisdiction acting with material irregularity in the exercise of its jurisdiction. The order cannot conse quently be deemed null and void." I am in respectful agreement with the views expressed in this case and am of opinion that although Mr. Muhammad Abdullah Cheema's' order was erroneous and although he could not have passed an order debarring the mortgagor from getting t11; 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, i as such, null and void.

12. The last argument advanced by the learned counsel for the respondent was that as no decree was drawn up in accord ance with the order dated the 21st February 1945, and as that order was not' itself a decree, the respondent could not have filed an appeal against it and, hence, the decision is not binding on him. To support this contention the learned counsel referred to Gold Ram and others v. Ganga Ram and others (54 I C 913) in which it was held that a paragraph in a judgment not drawn up in the form of a decree and not embodied in a separate form is not a decree within the terms of the Civil Procedure Code. The learned counsel for the appellant, on the other hand, refereed to Nathu Mal and others v. Ude Ram and another (A I R 1932 Lah. 214) in which, following an earlier Madras case, Subalakshmi Ammal v. Ramanujam Chetty (42 Mad. 52), it was held that "an order dismissing an application for a final decree by a mortgagee which purports to decide finally the rights of parties, so far as the mortgage in suit is concerned and has the effect of dismissing the plaintiff's suit, amounts to a decree and is appealable as such." In my opinion, the order dated the 21st February 1945, fell within the purview of section 47 of the Code of Civil Procedure, because it related to execution and discharge of the preliminary decree and, hence, was itself a "decree" within the meaning of section 2 (2) of the Code of Civil Procedure. The respondent could, therefore, have filed an appeal against that order. Even if it be assumed that that order did not fall within the purview of section 47 of the Code of Civil Procedure, it being an order under Order XXXIV, rule 8, of the Civil Procedure Code, it amounted, to a final decree and, hence, an appeal could be lodged against it, even though the Court may not have drawn up a formal decree in terms of that rule. The argument advanced by the learned counsel has, therefore, no force.

13. For reasons given above, I am of opinion that Sultan Ali respondent could not have filed a second suit of redemption in the presence of the order dated the 21st February 1945. His suit was, therefore, rightly dismissed by the trial Court.

14. As a result of these findings, I accept this appeal, set aside the judgment of the learned District Judge and, hereby, dismiss the respondent's suit with costs throughout. A. H. Appeal accepted.