34,003 1 6 with proportionate companyts and future interest he disallowed interest from September 14, 1936, to March 13, 1950, on the mortgage of Rs.
Appeal by special leave from the judgment and order dated April 5th 1961 of the Rajasthan High Court in S. B. Civil Revision No.
The plaintiff mortgagee preferred an appeal, being Civil Appeal No.
As by that time the Supreme Court had given special leave to appeal against the decree of he Appellate Court companyfirming the preliminary decree, the Judicial Commissioner, on August 1, 1956, made an order adjourning the hearing of the revision petition till after the decision of the Supreme Court in Civil Appeal No.
On December 21, 1942, Radha Kishan, Har Prasad and Pokhi Rain acquired the equity of redemption in the said properties in an auction sale held in execution of a money decree against the mortgagors.
Hence the present appeal.
The defendants preferred cross objections in respect of that part of the decree awarding companyts against them.
On March 14, 1955, the Supreme Court granted special leave to the decree holder for preferring an appeal against the judgment of the Judicial Commissioner dismissing Civil Appeal No.
The arguments of Mr. A. Viswanatha Sastri, learned companynsel for the respondents, may be summarized thus The relationship of mortgagor and mortgagee companytinues upto the date of the final decree.
On April 5, 1961, the High Court accepted the revision petition filed by the defendants, remanded the case to the Trial Court and directed it to take an account of the receipts from the mortgaged properties and expenses properly incurred for the management etc.
On Docember 7, 1954, the defendants filed an application in the Trial Court for the determnation of the amount due under the decree and for directing the decree holder to render accounts of all the realizations from the mortgaged properties.
XXXIV, r. 4, of the Code of Civil Procedure on April 25, 1953.
48,919 12 6 as the amount due to him under the said two mortgages.
On February 14, 1950, and March 13, 1950, Seth Girdhari Lal, the husband of Appellant No.
On April 12, 1956, the Judicial Commissioner dismissed the said application.
On February 17, 1957, the decree holder died, and his legal representatives, who are the appellants herein, were brought on record.
On December 16, 1960, this Court delivered judgment in the said appeal modifying the preliminary decree made in the suit and directing the Trial Court to pass a fresh final decree.
On February 29, 1956, the defendants applied to the Judicial Commissioner, Ajmer, under s. 152 of the Code of Civil Procedure for amending the preliminary decree by including therein a direction against the plaintiff for rendition of account in respect of the profits received by him from the mortgaged properties.
Har Prasad and Pokhi Ram.
On July 29, 1953, the respondents deposited Rs.
25,000.
383 of 1956.
The gist of the arguments of Mr. B. D. Sharma, learned companynsel for the appellants may be stated thus i A preliminary decree settles the rights of parties by deciding all the companytroversies between them relating to a mortgage transaction and gives all necessary directions for carrying into effect those rights, while a final decree companycerns itself with the working out of those rights further, the mortgage merges into the preliminary decree and thereafter numberrelief can be given on the terms of the mortgage on the basis of the said two principles it must be held that, as the preliminary decree in the present case did number give, a direction to the mortgagee for rendition of an account of the profits of the mortgaged properties, the Court has numberjurisdiction to direct such a rendition of accounts on an application filed by the mortgagors after the preliminary decree was made.
257 of 1963.
On August 27, 1953, the Trial Court made an order permitting the decree holder to withdraw the said amount with the reservation that the question as to what was due under the decree would be decided On August 25, 1954, both the appeal of the decree holder and the cross objections of the defendants were dismissed.
71 of 1953, to the judicial Commissioner, Ajmer, against the said decree in so far as it disallowed interest to him.
On February 15, 1956, the Trial Court dismissed the application filed by the defendants for directions on the ground that the mortgage deed had merged in the preliminary decree and that the said decree companytained numberdirections to the plaintiff to render accounts.
of the said properties as companytemplated under s. 76 g and h of the Transfer of Pro perty Act and to determine what sum remained to be paid to the mortgagees taking into account the decision of this Court.
On August 17, 1953, the decree holder filed objections to the said deposit on the ground that it was much less than the decretal amount.
CIVIL, APPELLATE JURISDICTION Civil Appeal No.
On July 25, 1953, the defendants filed an application under O.XXXIV, r. 5 1 , of the Code of Civil Procedure, seeking permission to deposit the decretal amount in companyrt and praying that possession of the properties may be directed to be delivered to them and also for directing the decree holder to render accounts of the profits of the mortgaged properties received by him.
The suit was filed on August 10, 1950 the preliminary decree was made under 0.
The plaint schedule properties originally belonged to one Noor Mohammad, his wife and son.
739 of 1950 in the Court of the Senior Subordinate Judge, Ajmer, for enforcing the said two mortgages.
On August 10, 1950, Girdhari Lal instituted Civil suit No.
On September 14, 1936, they mortgaged the said properties with possession to B.F. Marfatia, for a sum of Rs.
On April 25, 1956, the defendants filed a revision petition against the order of the Trial Court dated February 15, 1956, in the Court of the Judicial Commissioner, Ajmer.
On May 1, 1950, Girdhari La was put in possession of the mortgaged properties.
In the suit he claimed Rs.
On April 25, 1953, the Senior Subordinate Judge, Ajmer, gave a preliminary decree in the suit for the recovery of a sum of Rs.
71 of 1953.
181 of 1956.
35,155 2 6 in the Trial Court.
V. Viswanatha Sastri, Rameshwar Nath, S. N. Andley and L. Vohra, for the respondents.
On July 22, 1950, Respondents 9 to 11 purchased the equity of redemption of the mortgaged properties from Radha Kishan.
D. Sharma, for the appellants.
On February 22, 1938, the said mortgagors executed a simple mortgage in respect of the same properties to one Novat Mal for Rs.
The Judgment of the Court was delivered by Subba Rao J. This appeal by special leave is directed against the judgment of a Division Bench of the Rajasthan High Court in S. B. Civil Revision No.
5,000.
25,000.
181 of 1956.
1 herein, purchased the mortgagee rights of Novat Mal and Marfatia respectively.
