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Het Singh and ors. Vs. Tika Ram - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All388; 14Ind.Cas.240
AppellantHet Singh and ors.
RespondentTika Ram
Excerpt:
civil procedure code (act v of 1908), section 148, order xxxiv, rule 8 - redemption suit--time fixed for payment of a prior mortgage--extension of time. - - it provided that if tika ram failed to pay up to the 15th of august',1904, his suit was to be dismissed. (1) could the time for the payment of the money due on the mortgage of bhagwant singh be extended under section 148, civil procedure code ? (2) was good cause shown for extending the time. ? 2. the lower appellate court found that the time for the payment of money under a mortgage decree could be extended under section 148, civil procedure code, and that good cause was shown, for the extension. 3. in second appeal it is urged that suction 148, civil procedure code, has no application ;that, an executing court 1 as no power to..........order xxxiv, rule 8, upon good cause shown and upon such terms, if any, as it thinks lit from time to time postpone the day fixed for payment.' the learned vakil for the appellants concedes this, but urges that time can be extended when the decree in a redemption suit is drawn up in the form prescribed by law, but that if it provides that in case of failure to pay within the period fixed by the decree, the suit shall stand dismissed, no execution can be granted in contravention of the provision in the decree. we are unable to accept, the contention. the decree, in the case before us was a decree in a redemption suit, and the provision therein that in case of failure to pay the plaintiff's suit shall stand dismissed was carelessly put in for the provision that the plaintiff shall be.....
Judgment:

Karamat Husain and Tudball, JJ.

1. One Khushal Singh mortgaged the property in suit to Bhagwant Singh on the 19th of November, 1889. He again mortgaged it to Tika Ram on the 2nd of January, 1894. Bhagwant Singh brought a suit on his mortgage without impleadiug Tika Ram and got a decree on the 23rd of June, 1900, in execution of which he bought the property on the 15th of August, 1904, Tika Ram, on the 7th of February, 1910, got a decree to redeem the mortgage of Bhagwant Singh on payment of Rs. 462 with interest. The decree was in general terms and did not set out the amount of interest which Tika Ram had to pay. It provided that if Tika Ram failed to pay up to the 15th of August', 1904, his suit was to be dismissed. The date is presumably wrong. The 15th of August, 1910, was the date fixed. The date of the mortgage in favour of Bhagwant Singh is also wrongly shown as November, 1890, instead of the 19th of November, 1889. On the 2nd of August, 1910, Tika Ram paid into the court Rs. 2,278, calculating interest from November, 1890. The sum was less than the full amount due on the mortgage if calculated from the 19th of November, 1889. The judgment-debtors taking advantage of the mistake applied on the 21st of November, 1910, that Tika Ram's claim be dismissed on the ground of the provision in the decree and that costs be awarded to the applicants. The court of first instance acting under Section 148, Civil Procedure Code, enlarged the time for payment up to the 15th of February, 1911, and rejected the application. In appeal two points wore considered:

(1) Could the time for the payment of the money due on the mortgage of Bhagwant Singh be extended under Section 148, Civil Procedure Code ?

(2) Was good cause shown for extending the time. ?

2. The lower appellate court found that the time for the payment of money under a mortgage decree could be extended under Section 148, Civil Procedure Code, and that good cause was shown, for the extension. On the above findings the lower appellate court upheld the order of the first, court.

3. In second appeal it is urged that suction 148, Civil Procedure Code, has no application ; that, an executing court 1 as no power to extend the time fixed by the mortgage decree for the payment of a prior mortgagee, and that no good cause was shown for the extension of the time for the payment. We are of opinion that Section 148, Civil Procedure Code, applies to cases in which is extended the time fixed by the Code of Civil Procedure for the doing of some act and not to the extending of the time fixed by a mortgage decree for the payment of a prior mortgage.

4. In the decree in a redemption suit 'the court may, under Order XXXIV, Rule 8, upon good cause shown and upon such terms, if any, as it thinks lit from time to time postpone the day fixed for payment.' The learned vakil for the appellants concedes this, but urges that time can be extended when the decree in a redemption suit is drawn up in the form prescribed by law, but that if it provides that in case of failure to pay within the period fixed by the decree, the suit shall stand dismissed, no execution can be granted in contravention of the provision in the decree. We are unable to accept, the contention. The decree, in the case before us was a decree in a redemption suit, and the provision therein that in case of failure to pay the plaintiff's suit shall stand dismissed was carelessly put in for the provision that the plaintiff shall be debarred from all right to redeem the mortgaged property, inasmuch as the suit was for redemption and the dismissal of such a suit had the effect of debarring the plaintiff from all right to redeem.

5. We are satisfied that Tika Ram in calculating the interest from November, 1890, made a bond fide mistake which constituted a good cause for the extension of the time for the payment of the prior mortgage of the 19th of November, 1889. We therefore uphold the decree of the lower appellate court, but not for the reasons set out by that court in its judgment. The result is that we dismiss the appeal with costs.


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