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Babu Batuk Nath Vs. Musammat Munni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.36
AppellantBabu Batuk Nath
RespondentMusammat Munni and ors.
Excerpt:
mortgage - decree--time fixed for payment of a prior mortgage--payment not made within time, effect of--transfer of property act (iv of 1832), section 93--civil procedure code (act v of 1908), sections 148, 151--extension of time fixed in a decree. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under..........account of court-fee within a week in respect of rs. 29,534 claimed by defendants nos. 2 to 7 as prior mortgage debt, the plaintiff do further pay to defendants nos. 2 to 7 or deposit in court rs. 29,534 with interest at rs. 6 per cent. per annum together with one set of pleader's fees and other costs incurred by defendants nos. 2 to 7 within 5 months from to-day. if the plaintiff fails to pay the said court-fee or the said prior mortgage debt within the periods allowed, his suit shall stand dismissed with costs and that if the plaintiff carry out both the above orders then it is decreed and hereby declared that on the 29th day of september 1898 the sum of rs. 79,668-1-3 with future interest and interest pendente lite at rs. 6 per cent, per annum will be payable to the plaintiff,.....
Judgment:

Karamat Husain, J.

1. The appellant is the purchaser of a decree obtained upon a mortgage on March 29th, 1898, against the respondents or the persons whom they represent. The original decree having been written upon very flimsy paper is now very much torn and is in places illegible but it is admitted by the parties to this appeal that the following translation of it prepared in First Appeal No. 132 of 1898 decided on February 14th 1900 is correct. The translation of the relevant portion of the decree runs as follows:

It is ordered that the plaintiff do pay Rs. 975 on account of Court-fee within a week in respect of Rs. 29,534 claimed by defendants Nos. 2 to 7 as prior mortgage debt, the plaintiff do further pay to defendants Nos. 2 to 7 or deposit in Court Rs. 29,534 with interest at Rs. 6 per cent. per annum together with one set of Pleader's fees and other costs incurred by defendants Nos. 2 to 7 within 5 months from to-day. If the plaintiff fails to pay the said Court-fee or the said prior mortgage debt within the periods allowed, his suit shall stand dismissed with costs and that if the plaintiff carry out both the above orders then it is decreed and hereby declared that on the 29th day of September 1898 the sum of Rs. 79,668-1-3 with future interest and interest pendente lite at Rs. 6 per cent, per annum will be payable to the plaintiff, namely, (here follow details of the last mentioned sum) and it is hereby ordered that upon the defendants Nos. 1, 8, 15 and 16 to 22 (the mortgagee and the subsequent mortgagees) paying tae aforesaid sum of Rs. 79,668-1-3 to the plaintiff or into Court on the 29th day of September 1898, the plaintiff shall deliver up to the defendant or to such person, as he appoints all documents in his possession or power relating to the property specified below and shall transfer the property to the defendant free from all encumbrances created by the plaintiff or any person claiming under him or by those under whom he claims. But if such payment be not made as aforesaid on or before the 29th day of September 1898, then it is ordered that the said property or a sufficient part thereof be sold, i.e., the mortgaged property mentioned in the accompanying list.... The decree-holder paid the required amount of Court-fees within the time limited. On second occasion the Court extended the time for payment of the amount due to the prior mortgagees. Ultimately in March 1902 the Court declined to allow any further time and in June of the same year an application for review of that order was dismissed. Notwithstanding the refusal of the Court in 1902 to grant further time as stated, the decree-holder in September 1907 paid into Court the amount due to the prior mortgagees and they withdrew it.

2. In October 1907, the decree-holder applied to the Court for an order absolute for the sale of the mortgaged property. His application was rejected on the ground that the decree-holder not having paid the amount due to the prior mortgagee within time, the suit by force of the provision to that effect contained in the decree stands dismissed and there is no decree for sale which the decree-holder can enforce.

3. The decree-holder has appealed. On his behalf it is urged that the provision in the decree fixing a time within which the decree-holder was to pay the amount due to the prior mortgagees was intended for the benefit of the prior mortgagees and does not concern either the mortgagor or the subsequent mortgagees, that when the Court accepted the money deposited by the decree-holder and paid it over to the prior mortgagees it must be deemed to have extended the time for payment to the prior mortgagees notwithstanding its refusal to allow any further time in 1902.

4. The latter argument may be disposed of very shortly. It is not suggested that the Court when receiving the money in 1907 so much as considered the question whether further time should be allowed. When money is paid into Court in a suit with the request that it may be paid out to another party and there is nothing in the nature of stop order against or attachment of the money, the money will be paid out as a matter of course. In such a case the action of the Court is purely mechanical. It is more than doubtful whether in view of what occurred in 1902 the Court could have extended the time in 1907 even if the decree had not provided that in the events which happened the suit should stand dismissed. In my opinion the action of the Court in accepting the money and paying it to the prior mortgagees does not affect the case in any way.

5. Nor can I accept the contention that it is only the prior mortgagees who can take advantage of the provision in the decree fixing a time for payment of the money due on the prior mortgage. On the decree as it stands, the mortgagor and the puisne mortgagees were entitled to assume, when the money was not paid within the time limited or extended by the Court, that the suit stood dismissed as against all the defendants and that they would not be called upon to pay the large amount due to the decree-holder in order to save the property from being sold and their respective interests swept away.

6. It appears to me that the rights and liabilities of the parties as regards the decree-holder's mortgage depend upon the decree. It does not in the least signify whether the decree was in accordance with the law or not. [See Sri Raja Papamma v. Sri Vira Pratapa 19 M. 249 (P.C.) : 23 I.A. 32]. As a matter of fact the decree was in accordance with the rulings of this Court at the time when it was passed. In requiring the decree-holder to redeem the prior mortgage before bringing the mortgaged property to sale, the decree was in strict accordance with the much discussed and now superseded decision of Full Bench of this Court in Matadin Kasodhan v. Kazim Husain 13 A. 432. The learned Advocate for the appellant decree-holder referred us to the decision of this Court in Debi Prasad v. Jai Karan Singh A.W.N. (1902) 125. In that case a decree on a mortgage passed under Section 88 of the Transfer of Property Act required the decree-holder to redeem two prior mortgages before bringing the property to sale and fixed a period of two months within which redemption might be effected. Two months after the expiry of that period, the decree-holder paid into Court the amount due on the prior mortgages and the question was whether the decree-holder could proceed to sell the mortgage property. It was held that he could do so. The terms of the decree are not set out in the report or in the file of the appeal to this Court which I have examined. But neither in the report nor in the file is there any suggestion that the decree provided either that the suit should stand dismissed in case the decree-holder failed to redeem the prior mortgages within the time fixed or that the decree-holder should be entitled to bring the property to sale if he carried the order for redemption. There can be little doubt that the decree contained no such provision. There is, therefore, a considerable difference between that case and the case now before us.

7. The case of Sita Ram v. Madho Lal 24 A. 44, relied upon by the learned Advocate for the appellants, and the case of Lachman Singh v. Madsudan A.W.N. (1907) 137 : 29 A. 481 : 4 A.L.J. 447, upon which the learned Advocate for the respondents relied, appear to me to have no bearing upon the present case. Both cases deal with the question whether a second suit for redemption can be maintained when the first suit has terminated in a decree which was irregular in form or did not effect a foreclosure. We are not at present concerned with the question whether the appellant before us could bring another suit on his mortgage. The question is whether he can cause the mortgage property to be sold in execution of the decree which he has obtained. It was suggested that the decree being as it is, a combination of a decree for redemption and a decree for sale should be treated as two separate decrees I do not think that such a course would improve the appellant's position. Under Sections 92 and 93 of the Transfer of Property Act, the plaintiff is not entitled to redeem except within the time originally fixed by the Court or extended under the proviso to Section 93, and the Courts are not bound to extend the time. In practice such Courts are less inclined to extend the time for a plaintiff seeking to redeem than they are to extend the time for a defendant in a suit by a mortgagee for foreclosure or sale. The former should be ready with his answer when be brings his suit. The latter is or may be taken by surprise. Therefore, it is quite clear that the appellant was not entitled to redeem the prior mortgage on the day on which he paid the money into Court. And as payment was made to the prior mortgagees after the time limited by the Court and behind the backs of the mortgagor and puisne mortgagees, they are not bound by as payment. If the latter part of the decree be treated as a separate decree for sale, it is clear that the appellant is not entitled to execute it. It begins with the words 'if the plaintiff carry out both the above orders, then it is decreed and ordered.' The carrying out of the 'above orders' is plainly a condition precedent to the right to sell the property.

8. In the last place it was urged that this Court should take upon itself to extend the time for redemption up to the date on which the appellant paid the mortgage money into Court and we were referred to Sections 148 and 151 of the present Code of Civil Procedure. On the merits I should refuse to accede to this request, but I may say that, in my opinion, Section 148 relates only to proceedings antecedent to the passing of a decree and was not intended to enable the Court to extend the time in pre-emption and redemption cases. Special provision for extending time is made by Order XXXIV Rules 3 and 9. No such provision is made for pre-emption cases. Section 151 appears to have no application to the present case.

9. The present appellant purchased the decree some time before October 3rd, 1901, (the exact date does not appear). He seems to have made no serious attempt to execute the decree for about 6 years. I cannot, therefore, agree with the learned Advocate for the appellant that it is a case of great hardship. Nor should any such consideration be allowed to affect the case.

10. I would dismiss the appeal.

Chamier, J.

11. I agree.

12. The order of the Court is that the appeal be dismissed with costs including in this Court fees on the higher scale.


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