High Court of Karnataka Upholds Final Decree Court's Order Appointing Court Commissioner to Execute Redemption Deed in Partition Suit. Final Decree Court Has Jurisdiction to Direct Redemption of Mortgage as a Consequential Step Under Preliminary Decree, No Separate Suit Required Under Order XXXIV CPC.

Writ petition under Articles 226 and 227 of the Constitution of India challenging an order passed by the Final Decree Court allowing an application for appointment of a Court Commissioner to execute a registered deed of redemption of mortgage in final decree proceedings.

The petitioner, original defendant No.2, sought to quash the order dated 19.02.2021 allowing I.A. No.XI and appointing a Court Commissioner to execute the deed of redemption in F.D.P. No.4/2004.

The petitioner contended that the Final Decree Court lacked jurisdiction to order redemption of mortgage and that the plaintiffs ought to have instituted an independent suit under Order XXXIV CPC seeking redemption.

In O.S. No.126/1983, a suit for partition and separate possession, the preliminary decree directed the plaintiff and defendant No.1 to equally pay the mortgage amount to defendant No.2 and secure redemption of the mortgaged property. The preliminary decree attained finality. During final decree proceedings, the Final Decree Court (III Additional Civil Judge and JMFC, Hubballi) allowed I.A. No.XI by order dated 19.02.2021, appointing a Court Commissioner to execute the deed of redemption.

Whether the Final Decree Court, while working out a preliminary decree in a partition suit which expressly directs the parties to redeem a mortgage by payment of the mortgage amount, possesses jurisdiction to direct execution of a deed of redemption upon deposit of the mortgage amount? Whether the parties are required to institute an independent suit for redemption?

Petitioner: Proceedings under Order XX Rule 18 CPC are confined only to division of properties by metes and bounds and cannot be enlarged to determine mortgage rights. Redemption is an independent substantive relief governed by Section 60 of the Transfer of Property Act, 1882 and Order XXXIV of CPC, requiring an independent suit. Merely because the preliminary decree observed that plaintiff and defendant No.1 shall pay the mortgage amount equally, such observation cannot confer jurisdiction upon the Final Decree Court to execute a deed of redemption. Respondents: The petitioner was a party to the original partition suit. The preliminary decree has conclusively adjudicated the existence of the mortgage, the liability of the co-sharers to redeem, and the manner of redemption. Once such adjudication has attained finality, the Final Decree Court possesses ample jurisdiction to pass all consequential directions including execution of a deed of redemption. The mortgage amount was deposited as early as in the year 1991, and relegating the parties to a fresh round of litigation after more than three decades would defeat justice and the object of final decree proceedings.

Final decree proceedings are a continuation of the original suit; the court retains complete control to pass all incidental, ancillary and consequential directions necessary for complete implementation of the preliminary decree. Where a preliminary decree in a partition suit expressly directs redemption of a mortgage upon payment, the subsequent redemption is a consequential step in effectuating the decree and need not await a separate suit under Order XXXIV CPC. Equity of redemption is a transferable and partible interest; partition of mortgaged property pertains to the equity of redemption and does not affect the mortgagee's security.

Order XX Rule 18 contemplates two distinct stages. The preliminary decree merely declares the rights and shares of the parties. The final decree does not reopen those findings but works out the rights already declared. The right of redemption is regarded as one of the most valuable incidents of ownership. It continues until lawfully extinguished either by act of parties or by decree of a competent Court. where the mortgaged property forms part of the joint family estate and the Court, while passing a preliminary decree in a partition suit, has expressly preserved or directed redemption upon payment of the mortgage amount, the subsequent redemption is only a consequential step in effectuating the decree and need not await a separate and independent suit for redemption.

A suit for partition and separate possession, O.S. No.126/1983, was decreed by the competent Civil Court. The preliminary decree directed the plaintiff and defendant No.1 to equally pay the mortgage amount to defendant No.2 and secure redemption of the mortgaged property; the preliminary decree attained finality. During final decree proceedings in F.D.P. No.4/2004, the plaintiffs deposited the entire mortgage amount into court. The plaintiffs filed I.A. No.XI under Order XXVI Rule 9 CPC seeking appointment of a Court Commissioner for execution of the Deed of Redemption. The Final Decree Court (III Additional Civil Judge and JMFC, Hubballi) allowed I.A. No.XI by order dated 19.02.2021. The petitioner, original defendant No.2, filed the present writ petition under Articles 226 and 227 of the Constitution of India challenging that order.

• Code of Civil Procedure, 1908: Order XX Rule 18, Order XXVI Rule 9, Order XXXIV Rules 7 and 8
• Transfer of Property Act, 1882: Section 60
• Constitution of India: Articles 226 and 227