Skip to content


Chatur Bawa Mulji Vs. Popatlal Narandas - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 782 of 1925
Judge
Reported inAIR1927Bom175; (1927)29BOMLR228
AppellantChatur Bawa Mulji
RespondentPopatlal Narandas
DispositionAppeal dismissed
Excerpt:
.....decree for redemption-no payment in time-no application for foreclosure-payment of money into court beyond time fixed-order for decree absolute.;a preliminary decree for redemption of a mortgage was passed in january 1923, but neither the mortgagor paid money into court within six months of the date of the decree nor did the mortgagee take steps to obtain an order for foreclosure or sale of the mortgaged property at the expiration of six months, in september 1924, the mortgagor paid the money into court and applied for the preliminary decree to be made absolute. he subsequently applied for excuse of delay in payment which was granted ; and a decree absolute was passed. the lower appellate court dismissed the appeal of the mortgagee on the ground that no appeal..........1924. on the other hand, the mortgagee in the meanwhile had not taken any steps to ask either for sale or foreclosure by reason of the default in payment by the mortgagors. the conduct of both parties may to some degree be accounted for by the fact that there was a second appeal by the mortgagee to the high court against the preliminary decree for redemption, but eventually he was unsuccessful.2. now it appears that the money was accepted by the court in error as to the true facts, that is to say, the clerk of the court was not told that the payment was out of time. the same day the payment was made, the mortgagors applied for the preliminary decree to be made absolute. then, on october 6, 1924, they applied for the delay to be excused : and on november 8, 'a decree absolute for.....
Judgment:

Amberson Marten, Kt., C.J.

1. In this case there was a preliminary decree for redemption passed in January 1923 in favour of the respondent-mortgagors. They had to pay the money within six months. The order provided that if they did not do so, the mortgagee was to be entitled to recover the same by sale of the property in suit. In fact they did not pay the money within six months, and they only paid it into Court in September 1924. On the other hand, the mortgagee in the meanwhile had not taken any steps to ask either for sale or foreclosure by reason of the default in payment by the mortgagors. The conduct of both parties may to some degree be accounted for by the fact that there was a second appeal by the mortgagee to the High Court against the preliminary decree for redemption, but eventually he was unsuccessful.

2. Now it appears that the money was accepted by the Court in error as to the true facts, that is to say, the Clerk of the Court was not told that the payment was out of time. The same day the payment was made, the mortgagors applied for the preliminary decree to be made absolute. Then, on October 6, 1924, they applied for the delay to be excused : and on November 8, 'a decree absolute for redemption' was passed. This decree does not appear to have been drawn up, but we understand it to mean that in effect the Court accepted the payment and directed the mortgagee to convey the property to the mortgagors.

3. There was an appeal by the mortgagee to the Joint Judge, who rejected it on the ground that no appeal lay from an order extending time for payment. Now we do not propose to decide whether in that particular respect the learned Joint Judge was correct or not. But assuming for the sake of argument that an appeal did lie to him, still in our opinion the trial Court was clearly right in extending in effect the time for payment of the money. The position was this. Both parties had been guilty of laches-the mortgagors in not paying the money, and the mortgagee in not applying for an order for sale or foreclosure. What then were the remedies for the mortgagee He could apply for a decree absolute for sale. But I take it that no Court would order the mortgaged property to be sold, when the money was already deposited in Court and was available for the mortgagee. If, on the other hand, he applied for foreclosure, we do not think that any Court of equity would in a case like the present pass a decree for foreclosure when the money was there in Court ready for the mortgagee to take it out, and where the mortgagee himself had waited for at least a year before making any application to enforce his rights under his preliminary decree. If, on the other hand, he relied on his second appeal to the High Court as justifying his delay, then the delay of his opponent in paying the money ought also to be excused.

4. Therefore, on the merits of this case it Seems to us that the decree passed by the trial Court was correct, and that, accordingly, this appeal should be dismissed with costs. We do not think this is a case where we should send it back to the lower appellate Court for any further consideration.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //