# GYASI RAM v. BRIJ BHUSHAN DAS AND ORS

- **Citation:** [1966] Supp. 1 S.C.R. 109
- **Court:** Supreme Court of India
- **Decided:** 1966-03-30
- **Bench:** K. N. Wanchoo, J.C. Shah, S.M. Sikri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gyasi-ram-v-brij-bhushan-das-and-ors-3786
- **Pages:** 5

## Headnote

Code
of Civi! Procedure (Act 5 of 1908) O.XXXIV, r. 7(l)(c)
(i) and (ii)-"Amount adjudged in respect of subsequent costs, charges, expenses and interests"-Scope of.
A preliminary decree was passed in the appellant's suit for redemption of a mortgage. The decree specified the amoun.ts due as
principal and interest, provided for payment of future mterest at
3% from the date of decree till date of realisation, and payment of
the amount due by a certain date. It also provided that, if payment
was made by that date, a final decree would be passed in favour of
the appellant, but that, if the payment was not so made, the respondent would be entitled to apply for a final decree for foreclosure. The
appellant appealed against the preliminary decree to the High Court
and applied for stay of the order requiring him to deposit the decretal amount within the date fixed by the trial court, and the High
Court granted stay on his undertaking to pay 9% interest instead of
3%, during the period of stay. Subsequently, the High Court dismisSed the appeal and confirmed the preliminary decree, but, the additional amount due for the period of stay on account of the undertaking, was not included by the High Court in the preliminary decree.
The appellant then applied for a final decree in his favour, after depositing a sum which was more than the amount to be deposited
when calculated according to the preliminary decree, but was less
than the amount when circulated according to the condition imposed
by the High Court in its stay order. The trial Court however directed
that a final decree for foreclosure in favour of the respondent be
drawn up, On appeal, the lower appellate court ordered that a final
decree be drawn up in favour of the appellant. In second appeal,
the High Court took the view that the appellant had to deposit the
entire amount due on the date of the deposit, as per its direction in
the stay order, and as them was a shortaJge on the date of depositthough the shortage was made up after the judgment of the lower
appellate court-onlv a final decree for foreclosure could be passed
in the respondent's favour.
In appeal to this Court,
HELD: The appellant was entitled to a final decree.
In order that a final de~ree may be passed in favour of the •Ppellant. he had to carry out before a final decree is passed, the terms
of the preliminary decree and to pay "the amount adjudged due in
respect of the subsequent costs, charges, expenses and
interests"
under O.XXXIV, r. 7(1) (c) (i) and (ii) of the Civil Procedure Code.
The appellant had carried out the terms of that decree by the deposit
made by him and he had nothing to pay on account of $Ubsequent
charges. costs, expenses and interest, because. the extra interest of
6% was not made a part of the decree, and it could not come within
the \Vords "in respect of subsequent costs, charges, expenses and in·
terests." as it arose out of an independent order of the High Court
HO
8t'PREME COURT Rf.PORTS
J.1966] "1'1'1'. H.~.K.
and was only payable on account of the undertakmg for purposes of
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stay. Further, .such subsequent costs. charges, expenses and interest
have to be adjudged before the mortgagor is asked to deposit the
amount. As regards the appellant's undertaking in the stay matter
the court could insist on his honouring it before the final decree is
passed. (112 F-113 CJ.

## Text

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109
GYASI RAM
v.
BRIJ BHUSHAN DAS AND ORS.
March 30, 1966
[K. N. WANCHOO, J.C. SHAH AND S.M. SIKRI, JJ.]
Code
of Civi! Procedure (Act 5 of 1908) O.XXXIV, r. 7(l)(c)
(i) and (ii)-"Amount adjudged in respect of subsequent costs, charges, expenses and interests"-Scope of.
A preliminary decree was passed in the appellant's suit for redemption of a mortgage. The decree specified the amoun.ts due as
principal and interest, provided for payment of future mterest at
3% from the date of decree till date of realisation, and payment of
the amount due by a certain date. It also provided that, if payment
was made by that date, a final decree would be passed in favour of
the appellant, but that, if the payment was not so made, the respondent would be entitled to apply for a final decree for foreclosure. The
appellant appealed against the preliminary decree to the High Court
and applied for stay of the order requiring him to deposit the decretal amount within the date fixed by the trial court, and the High
Court granted stay on his undertaking to pay 9% interest instead of
3%, during the period of stay. Subsequently, the High Court dismisSed the appeal and confirmed the preliminary decree, but, the additional amount due for the period of stay on account of the undertaking, was not included by the High Court in the preliminary decree.
The appellant then applied for a final decree in his favour, after depositing a sum which was more than the amount to be deposited
when calculated according to the preliminary decree, but was less
than the amount when circulated according to the condition imposed
by the High Court in its stay order. The trial Court however directed
that a final decree for foreclosure in favour of the respondent be
drawn up, On appeal, the lower appellate court ordered that a final
decree be drawn up in favour of the appellant. In second appeal,
the High Court took the view that the appellant had to deposit the
entire amount due on the date of the deposit, as per its direction in
the stay order, and as them was a shortaJge on the date of depositthough the shortage was made up after the judgment of the lower
appellate court-onlv a final decree for foreclosure could be passed
in the respondent's favour.
In appeal to this Court,
HELD: The appellant was entitled to a final decree.
In order that a final de~ree may be passed in favour of the •Ppellant. he had to carry out before a final decree is passed, the terms
of the preliminary decree and to pay "the amount adjudged due in
respect of the subsequent costs, charges, expenses and
interests"
under O.XXXIV, r. 7(1) (c) (i) and (ii) of the Civil Procedure Code.
The appellant had carried out the terms of that decree by the deposit
made by him and he had nothing to pay on account of $Ubsequent
charges. costs, expenses and interest, because. the extra interest of
6% was not made a part of the decree, and it could not come within
the \Vords "in respect of subsequent costs, charges, expenses and in·
terests." as it arose out of an independent order of the High Court
HO
8t'PREME COURT Rf.PORTS
J.1966] "1'1'1'. H.~.K.
and was only payable on account of the undertakmg for purposes of
A •
stay. Further, .such subsequent costs. charges, expenses and interest
have to be adjudged before the mortgagor is asked to deposit the
amount. As regards the appellant's undertaking in the stay matter
the court could insist on his honouring it before the final decree is
passed. (112 F-113 CJ.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 959 of
B
1964.
Appeal by special leave from the judgment and decree dated
March 16, 1963 of the Madhya Pradesh High Court in Second
Appeal No. 86 of 1962.
S. V. Gupte, So/iritor-General, Rameshwar Nath. S. N. A11dley
P. L. Volzra and Mahinde1 .'Varain. for the appellant.
c
A. K. Sen and R. Gopalakrishna11, for respondent no. I.
The Judgment of the Court was delivered by
Wanchoo, J. This is an appeal by special leave against the
judgment of the Madhya Pradesh High Cmirt and arises in the
following circumstances. The appellant brought a suit for redemption of certain mortgaged property. A preliminary decree was passD
ed in the suit on February 3, 1954. It specified the amount due as
principal and the amount due as interest upto a certain date. It also
provided that future interest was to be paid at three per cent per
annum on a certain sum from that date till the date of realisation.
Parties were to bear their own costs. Further the decree provided
for payment of the amount due on or bofore July 15, 1964 or within such time as might be extended. It also provided that if payment E
was made within the time limited under 0.XXXIV r. 7(1)(c) of
the Code of Civil Procedure, final decree would be passed. In the
alternative it was provided that if the deposit was not made, the respondent would be entitled to apply for passing of a final decree
praying that the right of the appellant to redeem the mortgaged
property be debarred.
There were appeals by both parties from this preliminary
decree to the High Court. In the meantime the appellant had prayed for extension of time and the trial court had extended time for
making payment upto August 15, 1954. About the same time, the
appellant applied to the High Court praying that the arder requiring him to deposit the decretal amount by August 15, 1954 be stay-
.,
ed till the disposal of the appeal by the High Court. On this appliG
cation, the High Court passed an order on July 26, 1954. This order
provided that if the appellant gave an undertaking to pay nine per
cent per annum interest instead of three per cent per annum during
the period of stay, the order of the trial court directing the appellant to deposit the decretal amount by August 15, 1954 would be
stayed. Thereupon the appellant gave an undertaking to the trial H
court on August 7. 1954 that he would pay nine per cent per annum
simple interest instead of three per cent per annum cluring the period
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GYASI RAM v. BR!J BHUSHAX DAS (Wrmc.lwo, .J.)
111
of stay. In consequence the order of stay passed by the High Court
came into force and no deposit was made by August 15, 1954. On
October 16, 1958, the High Court dismissed both the appeals and
the preliminary decree stood confirmed.
On March 20, 1959, the appellant applied to the trial court
for permission to deposit the sum of Rs. 42,204/5/-. On March
27, 1959, the trial court permitted the appellant to deposit the
amount but made it clear that this did not amount to any extension of time for making the deposit, and the question whether the
deposit was made within time would be decided after hearing both
parties. Notice was also issued to the respondent on the same date.
On March 28, 1959, the appellant deposited the amount. On April
8, 1959 the respondent appeared and objected that the amount
due was not Rs. 42,204 / 5 /- but Rs. 46,882 / 6 / 6 and therefore the
deposit was short by a sum over Rs. 4,000 /-. Thereupon the appellant deposited a further sum of Rs. 4,590/- on April 9,1959 and
prayed for a final decree in his favour. The trial court held on
April 18, 1959 that the deposit was made beyond time and therefore directed that a final decree for foreclosure in favour of the
respondent be drawn up. The appellant then went in appeal to
the District Judge. The Additional District Judge who heard the
appeal rejected the memorandum of appeal as insufficiently stamped. The appellant then filed a revision before the High Court. The
High Court allowed the revision on July 22, 1961 and remanded
the appeal to the Additional District Judge for decision on the
merits. On March 23, 1962, the Additional District Judge allowed
the appeal holding on the basis of O.XXXIV, r. 8 that as the
amount had been paid before the final decree was passed, it was
within time. Consequently the Additianal District Judge ordered
that a final decree be drawn up in favour of the appellant. It may
be noticed that it was also contended before the Additional District Judge that the amount deposited was short by Rs. 8811 / •.
The Additional District Judge pointed out that this was not made
a ground of attack in the trial court. In any case he held that the
amount which had to be deposited was as required by the preliminary decree and that the same had certainly been deposited.
We may add that it is not in dispute between the parties that if the
amount to be deposited is to be in accordance with the preliminary
decree, the appellant has deposited that amount, rather more. The
shortage has occurred because for the period of stay the High
Court had ordered the payment of an extra six per cent per annum
interest and it is with respect to that interest that the shortage has
occurred.
The respondent then went in second appeal to the High Court.
The High Court agreed with the Additional District Judge and
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held that in view of O.XXXIV r. 8(1) the deposit made on April
9, 1959 before the final decree was passed on April 18, 1959 was
within time, even thougti the money might have been deposited
112
Sl!PR~.'IE OOUllT REPORTS
(1966]
BUPP. e.c.R.
after the time fixed under O.XXXIV r. 7. But the High Court also
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took the view that the mortgagor-appellant had to depoi;it the entire amount due on the date of lhe deposit and as there was a
shortage of Rs. 88/1 /-, the entire amount had not been deposited
and in consequence no final dr.cree could be passed in favoor df
the appellant. In the result the High Court set aside the order of B
the Additional District Judge and re~tored the order of the trial
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court passing a decree for foreclosure in favour of the respondent.
Thereupon the appellant obtained special leave from this Court,
and that is how the matler has come before us.
The only question raised on behalf of the appellant is that he
had deposited the amount which was strictly due under the preC
liminary decree and something more. The shortage was only on
account of the sum due as a result of the stay order passed by the
High Court by which he was required to pay six per cent per annum
more as interest for the duration of the stay. It is urged that this
amount could not be taken into account in considering the ques-
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tion whether the appellant had deposited the entire amount due
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under the preliminary
decree. We are of opinion that there: fa
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force in this contention and the appeal must succeed. Under
O.XXXIV, r. 8(1) the mortgagor can deposit all amounts due
under 0.XXXIV r. 7(1) before the final decree debarring him from
all rights to redeem is passed. Order XXXIV r. 7(1)
Jays down
what a preliminary decree should contain and we are in the pre>-
sent case concerned with els. (b) and (c) thereof. In this case the
preliminary decree had declared the amount due upto a certain date
towards principal and interest and had also provide for three per
F.
cent per annum interest on a certain sum from that date and had
directed as required by cl. (c) of 0.XXXIV r. 7(1) that if the
mortgagor-plaintiff paid in court the amount found before a certain date a final decree in his favour would be passed. The preliminary decree also laid down that if payment was not made within the time fixed a final decree for foreclosure in favour of the
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defendant-mortgagee would be passed. Now under O.XXXIV
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r. 711Hc)(i) and (ii) what the appellant had to deposit was the
amount found under the preliminary decree and also "the amount
adjudged due in respect of subsequent costs, charges. expenses and
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interests". It is not in dispute. as we have already indicated tha~
the appellant paid the amount found due under the preliminary
decree and also the subsequent interest as provided in the decree.
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Only there was a shortage in the extra amount he had undertaken
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to pay as extra interest at the rate of six per cent per annum for
the period of stay. The question is whether this amount can be
said to be within the words "the amount adjudged due in respect
of subsequent costs. charges, expenses and interests". We are of
opinion that this extra amount which was to be paid on account H
of the undertaking of the appellant for the purpose of stay cannot
ccme within the wards "in respect of subsequent costs. charges,
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GYASI RAM v. BRIJ BllUSHAN DA~ (Wanchoo, J.)
Jl3
expenses and interests". It is not in dispute that the High Court
dismissed the appeal of the appellant in 1958 and confirmed the
preliminary decree and that the amount due on account of the
undertaking to pay extra interest at the rate of six per cent per
annum for the period of stay was not included by the High Court
in the preliminary decree. This amount arose out of an independent order of stay and though the appellant was bound to pay it
in view of his undertaking. it was not made a part of the amount
due under the preliminary decree. Nor can it be said that it was
due in respect of subsequent costs, charges, expenses and interests.
Besides, such subsequent costs, charges. expenses and interests have
to be ad judged before the mortgagor is asked to deposit the
a.mount and it is not in dispute that no adjudgement as to any
subsequent costs, charges, expenses and interests was .made. So in
order that a final decree may be passed in favour of the appellant,
he had to carry out the terms of the preliminary decree and it is
not in dispute that he had carried out the ter.ms of that decree, and
he had to pay nothing on account of subsequent charges, costs,
expenses and interests, for nothing was adjudged in respect of
these. Nor as we have said already can the amount due as extra
interest on the basis of the undertaking given by the appellant for
the period of stay be considered to be of the nature of subsequent
costs, charges, expenses and interests mentioned in O.XXXIV
r. 7(1)(c)(i) and (ii).
It is however urged that on this view there would be no way
to enforce the appellant's undertaking to pay extra interest for the
period of stay. We do not think so. It would in our opinion be in,
order for the court to insist befo1·e it passed the final decree tha't
the appellant honours his undertaking. But that is not to say that
this amount due under an independent order of the High Court in
connection with stay became part of the amount due under the
preliminary decree or could be considered to be "subsequent costs,
:harges., expenses and interests". We may add that the shortage
m questlon was made good by the appellant soon after the order
of the. Additional District Judge and long before the judgment of
the High Court. As we have come to the conclusioo that this
~mount due on account of the undertaking given by the appellant
m the matter of stay cannot be taken to be part of the amount due
under the preliminary decree. it must be held that the appellant
was entitled to a final decree in his favour. We therefore allow the
appeal, set aside the order of the High Court and restore the order
of the Additional District Judge. The respondent will be entitled
to withdraw the amount deposited by the appellant including the
amount deposited on April 21. 1962 on the conditions in that
order. In the circumstances however we pass no order as to costs
throughout.
Appeal a/llowed.