Skip to content


Ram Lal and ors. Vs. Tulsa Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All180
AppellantRam Lal and ors.
RespondentTulsa Kaur and ors.
Excerpt:
.....that the court may, upon good cause shown and upon such terms, if any, as it thinks fit, from time to time, postpone the day fixed under section 92 for payment to the defendant,'the mortgagor or the purchaser of the equity of redemption had a right, until such order was made under section 93, to come into court at any time and make payment of the redemption money, and to do so without even having obtained an order on good cause shown postponing the day for payment. in our opinion, no matter what the practice of the court of chancery in england may have been, the intention of the indian legislature, as expressed by it in the transfer of property act, 1882, was that there should be no extension of time, except for good cause shown, whether the order under section 87 in a suit for..........that the court may, upon good cause shown and upon such terms, if any, as it thinks fit, from time to time, postpone the day fixed under section 92 for payment to the defendant,'--the mortgagor or the purchaser of the equity of redemption had a right, until such order was made under section 93, to come into court at any time and make payment of the redemption money, and to do so without even having obtained an order on good cause shown postponing the day for payment. now, if there was nothing else than the proviso to section 93 to show that that contention was unsound, the proviso would meet the argument. but earlier in the section we find in the second paragraph, which is the paragraph which deals with what is to happen on default of payment, the words 'if such payment is not so.....
Judgment:

John Edge, Kt., C.J. and Blair, J.

1. In 1869, Musammat Tulsa Kuar executed a compound kind of mortgage, which provided that, if the mortgage money was not paid within three years, the mortgage should be one by conditional sale and the mortgagees should have possession. The mortgage money was not paid within three years and the mortgagees obtained possession. The mortgagor brought a suit for redemption under the Transfer of Property Act, 1882, and on the 20th of April 1889 obtained a decree for redemption under Section 92 of that Act. The decree fixed the 20th of October 1889 as the day on or before which payment was to be made, and, the mortgage being one by conditional sale, decreed, in the event of non-payment by the date fixed, that the mortgagor should be absolutely debarred of all right to redeem the property. As is usual in these cases, the amount was not paid on or before the 20th of October 1889, and no application by the mortgagor, or by any representative of the mortgagor's interest as mortgagor, was made under Section 93 to the Court to postpone the day fixed by the decree under Section 92 for payment until the 14th of March 1894, when one of the mortgagees, who in the meantime had acquired by purchase the mortgagor's interest, paid the mortgage money into Court. On the 19th of March 1894, the other mortgagees or their representatives applied for an order under Section 93 of the Transfer of Property Act debarring the mortgagor, and all persons claiming through her, of all right to redeem the mortgaged property. That application of the 19th of March 1894 was dismissed, and from the order of dismissal this appeal has been brought.

2. It seems to have been assumed by the Court below that it was at liberty to do, without reference to the Transfer of Property Act, 1882, that which the Court of Chancery in England used to do in suits for foreclosure, namely, to extend the time within which the mortgage money might be paid; and the Court below further assumed that it had this power even in a case in which there was no cause shown for postponing the day for payment. The practice of the Court of Chancery in England in the case of a suit for redemption differed materially in these respects from its practice in the case of a suit for foreclosure. In the case of a suit for redemption, it does not appear to have been, except possibly in a very exceptional case, the practice of the Court of Chancery in England to extend the time within which the decreed redemption money might be paid. The cases showing what the practice of the Court of Chancery was are collected at pp. 1104 and 1106 of Coote on Mortgages, 5th edition.

3. Whatever may have been, or may now be, the practice in England in suits for redemption or foreclosure of a mortgage, what we are concerned with in India is the law on this subject which the Indian Legislature, being a competent body to legislate in that respect, has enacted shall be followed by Courts in this country. That law is provided for us in the Transfer of Property Act, 1882 (Act No. IV of 1882). So far as the power of a Court to extend the time in a suit for redemption or in a suit for foreclosure in India is concerned, the power and jurisdiction of the Court are limited, in the case of foreclosure, by Section 87, and, in the case of redemption, by Section 93 of the Transfer of Property Act, and in that respect the two suits are placed on exactly the same basis : in neither case as a Court, which is bound to obey the law of the Transfer of Property Act, 1882, power to extend the time for payment except on good cause shown.

4. Now, in this case, there was no good or other cause shown why the Court should postpone the date fixed by the decree which was passed under Section 92 of the Act for payment to the defendant. The Courts in India, where the Indian Legislature has made express provisions on the subject, have no power to arrogate to themselves the jurisdiction which was exercised by the High Court of Chancery in England. In our opinion the application of the mortgagees, respondents here, of the 19th of March 1894, for an order under Section 93 debarring the mortgagor, and anyone claiming under her, of all right to redeem should have been granted.

5. It has been contended that--inasmuch as Section 93 of the Transfer of Property Act, 1882, enacts that, 'on the passing of any order under this section, the plaintiff's right to redeem, and the security, shall, as regards the property affected by the order, both be extinguished; provided that the Court may, upon good cause shown and upon such terms, if any, as it thinks fit, from time to time, postpone the day fixed under Section 92 for payment to the defendant,'--the mortgagor or the purchaser of the equity of redemption had a right, until such order was made under Section 93, to come into Court at any time and make payment of the redemption money, and to do so without even having obtained an order on good cause shown postponing the day for payment. Now, if there was nothing else than the proviso to Section 93 to show that that contention was unsound, the proviso would meet the argument. But earlier in the section we find in the second paragraph, which is the paragraph which deals with what is to happen on default of payment, the words 'if such payment is not so made.' These words, in our opinion, must refer to a payment made in accordance with the decree passed under Section 92, and indicate that, unless the Court makes an order under the proviso to Section 93, there is no right in the mortgagor in a suit for redemption to make the payment after the date fixed in the decree has passed. The order under Section 93 debarring the mortgagor of all right to redeem would be, when drawn up, a document of title in the hands of the mortgagees, as it would show that the right to redeem allowed by the decree under Section 92 had lapsed and that no extension had been granted of the time within which payment might be made. The opening words of the second paragraph of Section 87, which relates to a suit for foreclosure, are the same as the opening words of the second paragraph of Section 93 which relates to redemption. In our opinion, no matter what the practice of the Court of Chancery in England may have been, the intention of the Indian Legislature, as expressed by it in the Transfer of Property Act, 1882, was that there should be no extension of time, except for good cause shown, whether the order under Section 87 in a suit for foreclosure, or the order under Section 93 in a suit for redemption, was applied for or not.

6. We cannot agree with the decision of the High Court at Calcutta in Pooresh Nath Mojumdar v. Ramjodu Mojumdar I.L.R. 16 Cal. 246 the provisions of the Transfer of Property Act being in our opinion clear in this matter. As to the case of Kanara Kurup v. Govinda Kurup I.L.R. 16 Mad. 214 it is to be observed that there was no decree in that case, under Section 92, as to what should happen in case payment was not made within the time fixed.

7. We allow this appeal, and direct that an order be drawn up under Section 93 of the Transfer of Property Act debarring the mortgagor, and all those claiming under her, of all right to redeem the mortgaged property. The appellants will have the costs of this appeal and of the application in the Court below. Of course, the persons who paid the mortgage money into Court will be entitled to get it out, their application being necessarily dismissed.


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