1980 PLP 397 (SCMR)

MUHAMMAD HALEEM, J.‑This appeal, by special leave, arises out of the judgment of the High Court of Baluchistan, Quetta, dated 2nd of Jan uary, 1978, dismissing R. S. A. No. 3 of 1975, with costs. On the commencement of the settlement operations, house bearing No. 5‑11 113, situate on Patel Road, Quetta, was transferred to the respon dent and a P.T.O. was issued on 22nd of September, 1961. Its price was R.s. 4,

431. By an unregistered mortgage deed dated 3rd of March. 1962, he surrendered his right, title and interest in the property in favour of the appellant for a consideration of Rs. 10,000 and on the same date he filed an affidavit to the same effect before the settlement authorities stating his no objection to the issuance of the permanent transfer deed in favour of the appellant. But for some technical reason which is not apparent from the record, this transfer document was not issued. By another registered mortgage deed, executed by the respondent, dated 21st of November, 1962, the earlier mortgage deed was cancelled and the possession of the house was handed over to the appellant for a consideration of Rs. 10,000 which was acknowledged to have been received by him. In August, 1972, the respondent offered to redeem the mortgage on payment of Rs. 10,000 and, thereafter, there was exchange of notices between the parties on the subject. On 4th of October, 1972, respondent filed an application in the Court of the Civil Judge, Quetta, purporting to be under section 85 of the Transfer of Property Act in which a prayer was made that the respondent be called upon to receive the sum of Rs. 10,000 which the respondent deposited in Court on 6th of October, 1972. This application was contested by the appellant which was ultimately disposed of on 31st of May, 1973. But as no material advantage was gained through this application, the respondent filed a suit for the redemption of the mortgage on 12th of June, 1973, under Order XXXIV, C. P. C. The relief claimed therein runs as under :‑ "(a) for redemption of the mortgage of the house bearing Municipal No. 5‑11/13, situate on Patel Road, Quetta, its re conveyance to the plaintiff and having possession thereof." The appellant resisted the suit on the ground that the mortgage deed was out and out a sale and for this not only reliance on the deed itself was placed but also on the affidavit filed by the respondent on 3rd of March, 1972, in which he had acknowledged surrendering his right, title and interest in the property to the appellant. Amongst others, the Court struck the following issues :‑ . "(a) Whether the document dated 21st of November, 1962, was a mortgage deed ; and if so, to what effect ? (b) Whether the defendant has spent any amount over the improve ment of the house, if so to what effect ?" The parties led evidence to establish their respective claims. The appellant, however, failed to prove that the mortgage deed dated 21st of November 1962 was out and out a sale. The Court, accordingly, decided this issue in favour of the respondent. Under issue No. 3, the finding of the trial Court was that the improvement, if made, was without the permission of the respondent and in terms of the mortgage deed he was not entitled to any compensation for it. By judgment dated 29th of April, 1975, the trial Court decreed the suit in terms that a decree for the redemption. of the mortgage of the house in question is passed with costs in favour of the plaintiff against the defendant. Decree sheet be drawn up and file be confined to record." The decree thus drawn up is apparently under Order XX, rules 6 and 7, C. P. C. and reads SUIT FOR REDEMPTION OF MORTGAGE This suit came up for final disposal before this Court, in the presence of Haji Allah Rakha for the plaintiff and Mohammad Shamshad for the defendant. Decree passed for redemption of Mortgage of house in favour of the plaintiff and against the defendant. Further a sum of Rs. 12,21.82 as costs of the suit be paid by the defendant to the plaintiff. Issued dated 29th April, 1975, under seal arid signature of the Court." The respondent went in first appeal before the District Judge, Quetta, who by judgment dated 21st of July, 1975, held that the deed dated 21st of November, 1962, was a mortgage with possession and not out and out a sale and, therefore, the respondent was entitled to redeem the mortgage. However, no objection was taken to the form of the decree sheet prepared pursuant to the judgment. In second appeal it was raised for the first time before the High Court that it was not in conformity with Order XXXIV, rule 7, C. P. C. but this objection was overruled on the ground that the respondent had not prayed for rendition of accounts as there was no dispute about it and there was, therefore, no necessity for passing a preliminary decree and the one passed was in conformity with the relief claimed. Leave to appeal was granted to consider the question as to whether the form of decree was in accordance with Order XXXIV, rule 7, C. P. C. On behalf of the appellant Mr. Talmiz Burney contended that in a redemption suit, rule 7 of Order XXXIV, C. P. C. contemplates a preliminary decree which bad to be drawn up in terms of the above‑cited rule ; and in eventuality it was not so drawn up, the decree remained unexcitable. In support of his contention, he relied on Tikarn Das and others v. Abdul Wali (P L D 1968 S C 241). A plain reading of Order XXXIV, rule 7, C. P. C. makes it mandatory for the Court to pass a preliminary decree for redemption ; and even in a case where clauses (a) and (b) of rule 7, Order XXXIV are not applicable for the reason that there was no prayer for rendition of account or for the payment of the money which had earlier been deposited, the requirement of clause (c) will, nonetheless, have to be complied with which inter alia provides for the delivery of the document relating to the mortgaged Property its re conveyance in favour of the mortgagor and the transfer of possession to him. In the instant case, the relief did embrace within it the requirement of re conveyance and transfer of possession, but the decree was silent in regard to it. Therefore, as contended by the learned counsel, it was not an execute able decree for it was framed in violation of clause (c) of rule 7, Order XXXIV, C. P. C. The High Court had held that as there was no prayer for rendition of accounts and the money had already been deposited in Court, the decree could be taken to be final but this fails to take into consideration the requirement of rule 9, Order XXXIV, C. P. C. which enjoins the Court to pass a decree directing the defendant to retransfer the property and to put the plaintiff into possession of the mortgaged property which requirement, on the face of the decree, is want ing, and therefore, this rule cannot be pressed into service. In the result, we are of the opinion that the form of the decree is in violation of Order XXXIV, rule 7, C. P. C. and, therefore, this requires rectification. Accordingly, we would allow this app.‑al, set aside the orders of the Courts below to this extent and remand the case to the trial Court to rectify the error in terms of Order XXXIV, rule 7, C. P. C. There will be no order as to costs. Appeal allowed.