S.J. Deshpande, J.
1. This is an appeal directed against the appellate decree passed by the learned Assistant Judge of Sangli in proceedings arising out of an order, dated December 9, 1971, by which the learned Civil Judge, Junior Division, Miraj granted the application of the defendant-respondent herein for passing a final decree in pursuance of the preliminary decree passed in Regular Civil Suit No. 149 of 1969.
2. The facts which are necessary to be stated in order to appreciate the controversy in this appeal are as follows:
The appellant Sadashiv Ishwara Powar and the respondent Sushilabai are related as real brother and sister, The dispute relates to the mortgage of a house situated at Miraj, which originally belonged to the appellant. The appellant had mortgaged this house with possession for Rs. 6,000. The appellant had filed a suit being Regular Civil Suit No. 149 of 1969 to redeem the said mortgage and it appears that a preliminary decree for redemption was passed in that suit ordering the appellant-mortgagor to pay the mortgage money and other expenses. This decree was passed on February 23, 1970 and the appellant-mortgagor was granted six months' time i.e. upto August 23, 1970 to pay the said amount.
3. The respondent-mortgage having been dissatisfied with the preliminary decree filed an appeal being Civil Appeal No. 225 of 1970 claiming interest on the mortgage money, which was disallowed by the trial Court and this appeal remained pending till October 28, 1971, on which date this appeal came to be disposed of.
4. It appears that after the passing of the preliminary decree and before the time of six months expired, the appellant-mortgagor did not deposit the decretal amount or pay to the mortgagee, but has filed an application at exh. 2 on August 20, 1970 which was purported to be filed under the provisions of the Code of Civil Procedure contained in Order 34 Rule 7(2) of the Code. This application is not included in the paper book, but Mr. M.A. Bane, the learned advocate for the appellant has read out the contents of this application in the Court and I have myself gone through the application which is in Marathi and on this application there is an endorsement of the Court 'Notice to other side'. It is not disputed that this application does not bear any formal adjudication either refusing to entertain this application or passing any such judicial order, which would either grant any legal right or refuse any such right being enforced by any party. In short, this application is not decided at all and remains undisposed of. I have myself seen the application exh. 2 and I find that there is no formal judicial order passed on this application at all. Therefore, it must be taken as a matter of fact that this application remains on record of the Court undecided and undisposed of even to-day.
5. As I have stated above, when the mortgagee's Civil Appeal No. 225 of 1970 was disposed of on October 28, 1971, the mortgagee filed an application on December 9, 1971 before the lower Court praying for foreclosure and asking the lower Court to pass a final decree in Regular Civil Suit No. 149 of 1969. It is this application out of which the present appeal arises. The lower Court after issuing notice to the other side allowed this application by its order, dated December 9, 1971 and ordered that final decree to be drawn.
6. Being aggrieved by this order, the mortgagor-plaintiff filed an appeal before the learned Assistant Judge at Sangli being Civil Appeal No. 64 of 1972. That appeal was heard and decided by the learned Assistant Judge on April 10, 1973. The learned appellate Judge raised two points as found at print p. 6 of the paper book viz:
(1) The plaintiff-mortgagor was entitled to six months time to deposit the decretal' amount from October 28, J971 which was the date of judgment and decree in Civil Apeal No. 223 of 1U70 and, therefore, the final decree passed by the learned lower Court on December 9, 1971, was premature,
(2) Since no final order has been parsed on his (plaintiff's) application dated August 20, 1070 praying for extension of time, that application would be deemed to be pending and, therefore, the order passed on December 9, 1071 without passing any final order on the application dated August 20, 1970 was illegal.
On these two points, the learned appellate Judge was pleased to observe that the mortgagor has deliberately failed to pay the decretal amount and no reasonable ground is shown as to why he should be granted further time. In para. 7 of his judgment, the learned appellate Judge observed as follows;
Thus the plaintiff-mortgagor was fully aware that, the defendant-mortgagee had applied for ii final decree for foreclosure and alter he had been served with a notice and after he appeared, lie had an opportunity to apply under Sub-rule (2) of 7 of Order XXXIV, Civil Procedure Code, for an extension of time. He had an opportunity to bring to the notice of this Court that he had applied already for extension of time for payment and that application was pending. Even, without extension of time, at any time, before the final decree was passed, be should have paid the money or deposited in the Court and avoided foreclosure. It, therefore, appears to me that the plaintiff-mortgagor had no money to pay decretal amount and therefore he deliberately absented himself and did not deposit the amount till December 9, 1971 when the final decree came to be passed.
On the basis of this reasoning the learned appellate Judge did not extend the time and upheld the order of the trial Court and dismissed the appeal. It is against this appellate judgment and decree, that the original plaintiff-mortgagor has filed this second appeal in the High Court.
7. Mr. Rane, the learned Advocate for the appellant raised before me two points for consideration. His first submission was that since the mortgagee had filed an appeal being Civil Appeal No. 225 of 1970 and that appeal came to be decided on October 28, 1971 on the principle of the trial Court's decree merging in the appellate decree, the date October 28, 1971 should be deemed to be the date of the preliminary decree itself and the appellant-mortgagor should be allowed to pay or deposit the decretal amount from that time, so there is no question of extension of time. I am not able to accept this submission at all. The principle of merger of decree will not apply in a case where the preliminary decree is passed and the party's rights are determined, because under the provisions of Section 2(d) of the Code of Civil procedure the decree may be preliminary or final, because the adjudication and collusiveness can attach to preliminary decree as well as to final decree. Moreover, in this case as preliminary decree remained undisturbed, because, the plaintiff-mortgagor did not file any appeal against that decree, and, did not obtain any order from the appellate Court for extension of time. Because the appeal filed by the mortgagee was confined to the claim of interest, which was disallowed by the trial Court, and it has nothing to do with the initial time granted by the preliminary decree. Therefore the contention that the time should be calculated from October 28, 1971 cannot be accepted. Mr. Rane also did not press this point any more. The second contention raised by Mr. Bane is that the appellate Court did not properly appreciate the legal effect of the application Exh. 2 filed before the Trial Court for extension of time.
8. It appears from the judgment of the appellate Court that the appellate Judge has specifically raised the point for determination at point No. 1 regarding the grievance made before the appellate Court that during the pendency of that application, the trial Court could not have made the decree final. This contention of Mr. Rane that the application Exh. 2 was not disposed of by the trial Court at all either way is appreciable. In the absence of any judicial order or any order informing the party about the result of that application being passed, it was against law to order final decree to be passed. That application was already filed before any final decree proceedings were taken. Mr. Rane contends that his client was entitled to extension of time according to that application. As it is stated in that application that he was unable to collect the funds on account of failure of rain and therefore he had asked for extension of two months' time only. It is not disputed that there is no order passed on this application. In my opinion, the trial Court as well the appellate Court have erred in appreciating the legal consequences of the pendency of that application. The reasoning of the learned appellate Judge proceeds on different basis which I will discuss later. The application is that two months' time may be granted to pay the decretal amount. Mr. Abhyankar, the learned Advocate for the respondent has repelled the contention of Mr. Rane stating that the application which was given although remained undecided may be taken to have been granted, because Mr. Abhyankar contends that at the most it will be thought that the foreclosure order is passed in favour of the appellant-mortgagor and his application stands granted. If his application stands granted according to Mr. Abhyankar, the time at the most will be extended for two months and at least at the expiry of that two months, the mortgagor was bound to deposit the amount in the Court and he cannot take advantage of the application, which has remained undecided, and the non-adjudication of the same. Mr. Abhyankar further contended that even on the date when his client applied for making the preliminary decree final i.e. on December 4, 1970 till December 1971, the appellant-mortgagor did not deposit the amount. This date December 9, 1971 is emphasized by Mr. Abhyankar to say that on this date the Court has passed final decree. It is the contention of Mr. Abhyankar that once the Court has passed the final decree the trial Court had no jurisdiction to extend the time to pay the decretal amount. Mr. Abhyankar in this connection relies on the provisions of Order XXXIV, Rule 7(2) of the Code of Civil Procedure, which reads as follows:
(2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under Sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest.
The learned Advocate Mr. Abhyankar contends that in view of the provisions contained in the above Sub-rule (2) especially the wording 'at any time before the passing of a final decree', the application for extension of time or the request for extension of time can be granted or considered before passing of a final decree. It is true that once the final decree is passed on the plain reading of this Sub-rule (2) of Rule 7 of Order 34 of the Code of Civil Procedure it is difficult to repel this contention. But in this case an application for extension of time was already given and was pending. When the application was pending on the file to extend time, I fail to understand as to how the Court could proceed with the case and pass a final decree without disposing of the application which was made for extension of time. The reasoning of the learned Assistant Judge, which is quoted above at page 6 para. 6 suffers from two misconceptions. He seems to think that the mortgagor could have revived his request for extension of time at the time of passing of the final decree. He has also been influenced by the fact that the mortgagor deliberately absented in the final decree proceedings though the notice was issued to him. Mr. Abhyankar also relied on this fact that the mortgagor appeared in the final proceedings but did not file any reply or did not even care to repeat or renew his request of grant of time or he did not even pay the amount in the final decree proceedings itself. It is the contention of Mr. Abhyankar that, if really, the mortgagor was in difficulty to pay the amount as stated in his application exh, 2 and he required only two months' period, that period had already expired and he did not avail of the opportunity till the final decree was passed or he did not avail of the opportunity to deposit the amount when the final decree came to be passed during the proceedings. Even till to day he has not shown any willingness or he does not actually deposit the amount after filing of even the second appeal in the High Court, Therefore, Mr. Abhyankar contends that the order passed by the learned Assistant Judge is correct and no interference is called for with the same.
9. After considering the provisions of Order 34, Rule 7(2) of the Code of Civil Procedure, I am inclined to hold that Sub-rule (2) is made for the protection of the mortgagor. In a transaction of mortgage, the mortgagor being a debtor is always in difficulty and passive. While interpreting the provisions, relating to the debtors, it would not be out of place to mention that the law will not be interpreted so rigidly as to deny the protection granted by the Code. Mr. Abhyankar has rightly pointed out that there are provisions contained in Order 34, Rule 7, Sub-rule (2) of the Code and it requires 'The Court may, on good cause shown and upon terms to be fixed by the Court'. It is on these two conditions that the discretion under Sub-rule (2) of Rule 7 of Order 34 of the Code has to be exercised. In the instant case, the challenge is that the Court has not acted at all because the application for extension of time which was pending before the Court is not disposed of in any manner in which ordinarily disposal of such application is understood. No Court has any jurisdiction to sit idle on any application made to it. It can either refuse to entertain the application itself or it can pass an order on merits allowing or disallowing the prayer made in any application. By whose fault, this result is obtained is not relevant because as far as the litigant is concerned, he has no information as to the decision on an application given by the Court. The Code of Civil Procedure requires and there are provisions which deal with the applications of various sorts, such as application for injunction, application for appointment of receiver and making such other applications. This application was specifically under the provisions of Order 34, Rule 7(2) of the Code, and therefore, it was incumbent on the Court to pass such or any order as it thought fit. In my opinion, therefore, the failure of the Court to decide this application has vitiated all further proceedings in this matter.
10. There is another reason that this application provided by the Code appears to be a specific application. There is provision of appeal provided against the adjudication of such application, under Order 43, Rule 1, Sub-rule 1(0) of the Code of Civil Procedure, which provides remedy of appeal in case the Court refused to grant extension of time.
11. It is true that the defect of non-deciding the application was criticized by the learned Advocate for the respondent saying that it is a technical thing. I do not agree with this submission. Any application under the Code of Civil Procedure cannot be treated as casual application, but it is an application given by the party to the Court to obtain a decision in the matter of controversy in this case, relating to extension of time at a particular stage of the litigation. Granting of extension of time in the matter of mortgage decree can not be treated as merely exercise to obtain some orders from the Court. A substantial right of the party under the decree is in dispute in view of the specific provisions of the Code and I do not think that the Courts below were right in not giving any decision on the said application. Therefore, the litigant was entitled to take benefit of that error committed by the Courts below. It is true that the other side i.e. the respondent is certainly deprived of a right but it was the duty of the respondent also to counter that application. In my opinion, that application having been not decided according to law, the appellant mortgagor was right in contending that his prayer for grant of extension of time to deposit the amount has not been properly decided at all. The provisions of Order 34, Rule 7(2) of the Code emphasized that the Court, upon such terms as fixed by it, which again indicates, that the lower Court while dealing with such application, is supposed to apply his mind and decide the application on merits. In this case, the lower Court has failed to take into account the said application of the appellant which has resulted in miscarriage of justice.
12. The learned Advocate for the appellant Mr. Rane relied on certain decisions, the first was that of Calcutta High Court reported in Sambhunath Auddy v. Tarak Nath Auddy : AIR1965Cal450 . This case has no bearing on the question which is involved in this appeal. It only lends support to the view that the case of the mortgagor-debtor must be considered in a charitable way. This was not the judgment stage that the extension of time has been granted. I am differing from the view which has taken by the Calcutta High Court. Because that the mortgagor's case should be considered in the light of the principle that the debtor is always in difficulty. In a mortgage transaction it would be unjust to be very rigid and harsh while exercising discretion in the matter when the Code specifically enjoins the same. This case is distinguishable because there was no application pending before the Court and therefore it is not a direct authority which can assist the appellant to advance his case.
13. Another judgment which is relied on by Mr. Rane was of our High Court, reported in Rango v. Bhomshetti I.L.R. (1902) 26 Bom. 121 (1901) 3 Bom. L.R. 554. This case is decided by the Division Bench of our High Court. That case again is not of any assistance to the appellant because it also states that even after the expiry of time, the extension of time can be granted. In the instant case, the request for extension of time was pending. Therefore, it is inconceivable that any question of expiry of time should arise.
14. Mr. Abhyankar, the learned Advocate for the respondent then contended that there is no good cause shown and if there is no good cause shown, the power of the Court to exercise discretion under the above Sub-rule (2) of Rule 7 of Order 34 of the Code is curtailed. It may be noted here that the main grievance of the appellant was that he was not able to know the precise position of his own case with regard to extension of time. Therefore further question of giving reasons to the Court and showing good cause as provided by Sub-rule (2) of Rule 7 of Order 34 of the Code does not arise. It is true that from 1971 to 1980 the matter is pending and it was reasonable and as a prudent man the appellant-mortgagor should have made the efforts to deposit the amount in the Court or at the time of filing of this second appeal. As the appellant-mortgagor was contesting the legal position, I do not attach any importance much to his failure to deposit the amount. In the appeal before the District Court as well as in the second appeal, in my opinion, the appellant had an arguable case and he was justified in conducting the matter as advised by his own counsel. Mr. Rane for the appellant has stated before me that the parties are relations, though it is stated that the relations are very strained. I am inclined to hold that this is a fit case wherein the appellant-mortgagor should not be penalized and deprived of his right to the property merely because he has failed to deposit the amount within time.
15. The transaction of mortgage was entered into in the year 1964. The decree for redemption was passed somewhere in 1970. The final decree was passed in 1971. The mortgage was a possessory mortgage. The respondent as mortgagee was in possession and occupation of the property and it is unlikely that she must not have earned any income or benefit including her own residence or some one else at her instance. Mr. Abhyankar in fairness has pointed out that there are improvements made to the property and it is worth more than one lakh. I am not able to take those facts into account as there is no material on record either way. As advised at present, I am of the opinion that the mortgagee was enjoying the property from 1970 to 1980 and mortgage was only for Rs. 6000. At least, yearly the mortgagee had earned the benefit of Rs. 1000 to 1200 per year. In view of this benefit which he has derived or might have derived, I think that while granting extension of time to the appellant in the interest of substantial justice I direct that the appellant will not only pay Rs. 6000 as mortgage money but additional sum of Rs. 6000 in order to compensate the mortgagee for the loss which might have been caused to her. This order which I am making is partly based on the concession given by Mr. Rane, the learned Advocate for the appellant, who stated in fairness that his client will be ready and willing to pay this much amount.
16. In my opinion, justice of the case will be certainly meted out by this order and therefore I direct that the plaintiff-mortgagor will pay a sum of Rs. 12,000 to the defendant mortgagee within a period of six months from to-day in default the decree of the appellate Court will stand. I also direct that in view of the defaults made by the appellant-mortgagor and he is succeeding only on the technical ground, he will not be entitled to any further accounts during the period, the mortgagee was in possession.
17. In the result, the appeal is allowed. The decree of the Courts below is set aside. However, I am making this order in my discretion which I have thought it fit to exercise in this case in view of the relations of the parties. I feel that the appellant-mortgagor should pay the costs, throughout.