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Chiranji Lal and ors. Vs. Dharam Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1896)ILR18All455
AppellantChiranji Lal and ors.
RespondentDharam Singh
Excerpt:
mortgage - prior and subsequent mortgages--decree giving a defendant, second mortgagee, a right to redeem a prior mortgage within a fixed period--appeal--limitation. - .....for pre-emption that if the sale price decreed to be paid by the plaintiff was not paid within the time allowed by the court of first instance, and if that time was not extended by the appellate court, the plaintiff could not pay the pre-emptive price after the expiry of the time allowed by the decree of the first court. the same principle applies to this case. the decree of the 1st of april 1892 was a decree for possession subject to a condition, that condition being that rs. 150 were to be paid by the defendant within six months. if the condition, were fulfilled, that decree would be one dismissing the suit for possession. in the event of default being made in payment, the decree was, on the expiry of the six months, to be an unconditional decree for possession. if he appeal was.....
Judgment:

Banerji, J.

1. This appeal arises out of proceedings relating to the execution of a decree passed in favour of the appellants. The facts of the case are these. One Moti Singh made a simple mortgage of some property in favour of one Durga Prasad in 1871. [456] He afterwards made a usufructuary mortgage of the same property in favour of Dharani Singh, the respondent, in 1878. In 1881 a decree for sale was obtained on the first mortgage. The second mortgagee was not joined as party to the suit for sale. In execution of that decree a parr, of the mortgaged property was sold, and it was purchased by the predecessor in title of the appellants. As the second mortgagee was in possession under his usufructuary mortgage the appellants brought a suit against him for possession of the property purchased by them at auction in satisfaction of the prior mortgage. That suit was resisted on the ground that the second mortgagee, not having been made a party to the first mortgagee's suit, had not been foreclosed of his right to redeem the first mortgage, and therefore the purchaser in execution of the decree made on the first mortgage was not entitled to possession as against him. The suit was dismissed by the Court of First Instance, but the Lower Appellate Court made a decree for possession in favour of the appellants on the 1st of April 1892, subject to the condition that the defendant, the second mortgagee, would have the option of redeeming the prior mortgage and retaining the property by payment of Rs. 150 to the plaintiff within six months from the date of the decree. The decree was thus one for possession subject to a condition, and if that condition tailed it was a decree for absolute possession. That decree was affirmed by this Court on the 18th of April 1894. The defendant, the present respondent, did not pay the Rs. 150 referred to above within six months from the 1st of April 1892, the date of the decree of the First Appellate Court. Thereupon the decree-holders, present appellants, applied for execution of the decree and delivery of possession to them. The respondent, judgment-debtor, raised objections in regard to the application, urging that he was entitled to compute the six months within which he was entitled to pay Rs. 150 from the date of the decree of the High Court, and, as those six months had not expired on the date of the application for execution, the decree-holders were not entitled to obtain possession. It is admitted that the decree of this Court dated the 18th of April 1894, by which the decree of the first appellate Court, was affirmed, did not extend the period within which the defendant was to redeem the prior mortgage. The Court of First Instance disallowed the objections of the judgment-debtor, but the Lower Appellate Court allowed them on the strength of certain rulings to which it has referred in its judgment. The learned Subordinate Judge was of opinion that the objection was not a valid one, but he considered himself bound by the rulings cited by him and therefore allowed the objection.

2. It is contended in second appeal that the judgment-debtor was not entitled to compute the six months within which he was to redeem the prior mortgage from the date of the decree of this Court, that decree not having extended the time for the payment of the money, Mr. Gobind Prasad has relied on the recent ruling in Jnggar Nath Pande v. Jokhu Tewari I.L.R. 18 Ali. 223. In my judgment the principle of that ruling fully governs the present case. In that case it was held with reference to a decree for pre-emption that if the sale price decreed to be paid by the plaintiff was not paid within the time allowed by the Court of First Instance, and if that time was not extended by the appellate Court, the plaintiff could not pay the pre-emptive price after the expiry of the time allowed by the decree of the first Court. The same principle applies to this case. The decree of the 1st of April 1892 was a decree for possession subject to a condition, that condition being that Rs. 150 were to be paid by the defendant within six months. If the condition, were fulfilled, that decree would be one dismissing the suit for possession. In the event of default being made in payment, the decree was, on the expiry of the six months, to be an unconditional decree for possession. If he appeal was preferred from that decree, and if the payment provided for by it was not made within six months, 'there can been question' that the decree-holder would be entitled to obtain possession by execution of the decree. By the mere fact of appealing from the decree the defendant could not extend the time allowed to him by the decree. If that time expired before the decision of the appeal by this Court, the decree for possession became thereupon a decree absolute, and the confirmation of that decree in second appeal by this Court could not alter the position of the parties. Before such confirmation the decree had become an absolute decree for possession, and unless the defendant obtained in his second appeal an extension of the time allowed to him for redeeming the prior mortgage, he became foreclosed of his right to redeem that mortgage. If the law were otherwise, the defendant in a suit for sale or the plaintiff in a suit for redemption would be able to obtain an extension of the time allowed to him to pay the mortgage money merely by the fact of preferring an appeal. The cases to which the learned Subordinate Judge referred were considered in the case of Jaggar Nath Pande v. Jokhu Tewari mentioned above and the principles enunciated in them were not accepted. In my judgment, in the absence of any specific extension by the appellate Court of the time allowed by the Court of First Instance for the redemption of a mortgage, the time within which redemption could take place is to be computed from the date of the decree of the Court of First Instance. I allow this apppeal, and, setting aside the decree of the Court below, restore that of the Court of First Instance with costs here and in the Court below.


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