Mahant Ishwargar Vs. Chudasama Manashai and ors. - Court Judgment
|Judge||Charles Sargent, C.J. and; Nanabhai Haridas, J.|
|Respondent||Chudasama Manashai and ors.|
mortgage - redemption--decree for redemption within specified time appeal against decree--power of court in execution to extend time for redemption allowed by decree--fact of appeal pending, no special ground for enlarging time. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is..........by the transfer of property act; and that there were sufficient grounds alleged for exercising the power of enlargement. as to the practice of the court of chancery, it would appear from the judgment in novosielski v. wakefield 17 vesey. 417 that under special circumstances, the court will enlarge the time given in a redemption decree, but the question here is whether the court executing the decree has the power to do so. the proviso to section 93 of the above act empowers the court to postpone the day fixed in a redemption suit under section 92, as to which it may be a question whether this proviso would apply to a case like the present where the application is for execution of the decree, and the day has already expired. but it is sufficient to say in the present case that the act has.....
Charles Sargent, C.J.
1. The Subordinate Judge has granted the plaintiffs' application made in execution of the decree obtained by them in their redemption Suit No. 1107 of 1877, on the ground that it is the practice of the English Court of Chancery to enlarge the time for payment of the mortgage-debt; that such a practice is recognised by the Transfer of Property Act; and that there were sufficient grounds alleged for exercising the power of enlargement. As to the practice of the Court of Chancery, it would appear from the judgment in Novosielski v. Wakefield 17 Vesey. 417 that under special circumstances, the Court will enlarge the time given in a redemption decree, but the question here is whether the Court executing the decree has the power to do so. The proviso to Section 93 of the above Act empowers the Court to postpone the day fixed in a redemption suit under Section 92, as to which it may be a question whether this proviso would apply to a case like the present where the application is for execution of the decree, and the day has already expired. But it is sufficient to say in the present case that the Act has not been extended to this Presidency, and that the Court executing the decree has no power to alter the language of the decree, which it would virtually do if it enlarged the time mentioned in it by accepting the Rs. 649-11-0 paid into Court on the 12th October, 1886. See the directions of this Court in Sakwar v. Mukund Babajishet I.L.R. 7 All. 871 . We may also add that, in our opinion, even if the Court had the power to enlarge in the course of execution, the mere fact that the plaintiffs had lodged an appeal would afford no special ground for enlarging the time. We must, therefore, discharge the order of the Court below, and reject the darkhast, with costs throughout on plaintiffs.