Skip to content


Hulas Rai and anr. Vs. Pirthi Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All500
AppellantHulas Rai and anr.
RespondentPirthi Singh and anr.
Excerpt:
mortgage - decree for foreclosure--order allowing mortgagor to deposit in court amount due after date fixed--ministerial act--order not appealable--civil procedure code, sections 244, 588--act iv of 1882 (transfer of property act), section 87. - .....order passed by the subordinate judge, it is now admitted, and is beyond all question, that the money was deposited in the court of the subordinate judge.2. these are the facts upon which the applicants have presented the appeal to this court, and it is this order of the subordinate judge directing that the money might be deposited with the officer of the court, which is sought to be made the subject of the appeal from order.3. now, objection was taken by my brother mahmood and myself to there being any appeal from an order of this kind. it can only be, and could only be, appealable if it is an order of the class and description mentioned in section 244 of the civil procedure code, or an order of the kind mentioned in section 588 of the code. as to section 588, it is obvious that this.....
Judgment:

Straight, J.

1. In this case the circumstances out of which this first appeal from order arises may be conveniently stated in order to make the view that I take of the preliminary objection which has been raised from the Bench itself intelligible. The appellants before us obtained a foreclosure decree in their favour on the 22nd March 1886, which, it is conceded was prepared in accordance with the terms of Section 86 of the Transfer of Property Act. By that decree it was provided, among other matters, that in the event of the mortgage money not being paid on or before the 22nd September 1886, the property would be foreclosed, with the necessary after alternative that, if it was paid on or before that date, the mortgagor would be entitled to the possession of the property. The matters that occurred subsequent to that decree are not very clear; but it would seem that the judgment-debtor, whose name was Lala Pirthi Singh, was insane or a lunatic, and an application was made on the 20th September, that is to say, two days before the period limited by the foreclosure decree had run out, by the wife of the judgment-debtor to the Court granting the decree, for an extension of time from the 22nd of September, the date upon which the foreclosure would otherwise ensue, and that the Subordinate Judge refused that application. From that refusal there was an appeal to this Court, which, on the 11th January 1887, granted an extension of time to the 23rd January 1887 The judgment of Edge, C. J., (in which Oldfield, J., concurred) was as follows: 'In this case, it is alleged on behalf of the appellant, and not denied on behalf of the respondent, that the principal debtor is insane. Under these circumstances, we think that the Judge below ought to have granted a reasonable extension of the time. It is said also that this is not a case in which there can be an appeal. It appears to us that it does come within the Sub-section (c) of Section 244 of the Civil Procedure Code. It is a question 'relating to the execution, discharge, or satisfaction of the decree' Under these circumstances we allow the appeal without costs and make an order that the appellant shall have until the 23rd January 1887, to make payment of the amount due under the decree.' and for the purpose of dealing with this appeal, we must, in my opinion, regard the decree obtained by the appellants on the 22nd March as having had written into it the 23rd January 1887, instead of the 22nd September 1886. It is admitted that the 23rd January was a holiday when the Court which passed this order was closed, and it is also admitted that the 24th January was also a holiday, and on the 25th January 1887, the second respondent appeared in the Court of the Subordinate Judge and presented a petition, alleging that by reason of those two days having been holidays--one being the date for the deposit--she had not been able to pay in the money, and stating that the money having been brought along with her, she asked to be allowed to deposit that money. There was nothing, to my mind, in that petition which may be regarded as in the nature of a petition judicially filed, i.e., as a legal document filed in the course of a suit. It was an application to the Court that originally passed the decree, asking it to receive a certain sum of money, which the party wished to deposit. Upon the face of that petition an order was granted, which I take to be nothing more than a direction from the Subordinate Judge to his subordinate official to receive the money. Upon this order passed by the Subordinate Judge, it is now admitted, and is beyond all question, that the money was deposited in the Court of the Subordinate Judge.

2. These are the facts upon which the applicants have presented the appeal to this Court, and it is this order of the Subordinate Judge directing that the money might be deposited with the officer of the Court, which is sought to be made the subject of the appeal from order.

3. Now, objection was taken by my brother Mahmood and myself to there being any appeal from an order of this kind. It can only be, and could only be, appealable if it is an order of the class and description mentioned in Section 244 of the Civil Procedure Code, or an order of the kind mentioned in Section 588 of the Code. As to Section 588, it is obvious that this order is not within that section, as we do not find it there. As to its being within the purview of Section 244 of the Code, it seems to me that that section contemplates that there must be some question in controversy and conflict in execution which had been brought to a final determination and conclusion so as to be binding upon the parties to the proceedings, and which must relate in terms to the execution, discharge or satisfaction of the decree. In my opinion this sanction to the deposit of money was merely a ministerial act, and the fact that by operation of law such deposit may result in certain consequences which will take legal shape in a judicial order of the Court, does not alter its character. That formal order will itself be subject to any steps which the parties affected by it may think proper to take by way of appeal or otherwise: If the deposit was made in time, the mortgagor is entitled to the benefits that are provided for him in Section 87 of the Transfer of Property Act; if it has not been made in time, the mortgagee, who is represented by the appellants here, is entitled to make the application provided for in Sub-section 2 of Section 87 of the Transfer of Property Act, with the consequence that if he obtains an order as therein provided, on the passing of such order, the mortgage-debt will be discharged. And that is, in my opinion, a step which the mortgagees-appellants must first take, before they have laid the foundation for coming into this Court to impeach the propriety of the action of the Subordinate Judge in allowing the deposit; to be made. In short, it comes to this, that the order was purely a ministerial order not falling within the purview of Section 244 or Section 588 of the Civil Procedure Code, and, as such, cannot be made the subject-matter of appeal. Without, therefore, discussing or determining the other questions raised in the appeal, I am of opinion that as no appeal lay we have no alternative but to dismiss it with costs.

Mahmood, J.

2. I am entirely of the same opinion, and only wish to add that the judgment of the learned Chief Justice and my brother Oldfield, in F. A. from Order No. 223 of 1886, disposed of on the 11th January 1887, ante, p. 502, note, does not, in ray opinion, lay down any rule which is inconsistent with what my learned brother has said, and which I think is the point upon which our judgment should be based, namely, that no appeal lies from an order such as the order of the 25th January 1887, from which this appeal has been preferred. I would, therefore, dismiss the appeal with costs.


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