Skip to content


Sadho Lal and ors. Vs. Kalian and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Judge
Reported in(1913)ILR35All116
AppellantSadho Lal and ors.
RespondentKalian and ors.
Excerpt:
.....failed to pay the money within the time allowed. they also pointed out the error in entering bidhi chand's name and asked for further extension of time to make good the deficiency. it was a suit for sale, but directly the present appellants determined to stand upon their prior rights and demanded redemption, the suit became a compound suit and as a matter of fact the decree was both for sale and redemption, and so far as the decree between the present parties is concerned, it is clearly and simply a decree for redemption. in our opinion the proviso to rule 8 of order xxxiv, clearly applies and the lower court had power to pass the order. the objection taken by the present appellant was simply as to the amount and the court below was satisfied that there was a bona fide mistake in..........as subsequent transferees. it appears that there were three prior mortgages, one in favour of bidhi chand and two in favour of kalian. bidhi chand sold his rights to kalian and the other three appellants before us. at the trial of the suit these four persons thought fit to stand upon their rights as prior mortgagees and claimed that the plaintiffs should redeem them before they sold the mortgaged property. the result of this was a compound decree in favour of the plaintiffs to the following effect. the court ordered the original mortgagors to pay up the plaintiffs' debt within three months. it then ordered that if they failed so to pay, the plaintiffs should pay within a further period of one month to the present appellants the sums due on the three prior mortgages, and conditional.....
Judgment:

Tudball and Muhammad Rafiq, JJ.

1. This appeal arises out of the following circumstances. The respondents to this appeal brought a suit for sale on the basis of a mortgage. They impleaded certain persons as subsequent transferees. It appears that there were three prior mortgages, one in favour of Bidhi Chand and two in favour of Kalian. Bidhi Chand sold his rights to Kalian and the other three appellants before us. At the trial of the suit these four persons thought fit to stand upon their rights as prior mortgagees and claimed that the plaintiffs should redeem them before they sold the mortgaged property. The result of this was a compound decree in favour of the plaintiffs to the following effect. The court ordered the original mortgagors to pay up the plaintiffs' debt within three months. It then ordered that if they failed so to pay, the plaintiffs should pay within a further period of one month to the present appellants the sums due on the three prior mortgages, and conditional upon their so doing, the decree gave the plaintiffs power to consolidate the amounts due on all the mortgages and to put the property to sale for the full amount. It went on to say that if the plaintiffs failed to pay off the amounts due on the prior mortgages within the time allowed, the suit should stand dismissed. The original mortgagors failed to pay the money within the time allowed. Therefore the plaintiffs within a further time of one month deposited Rs. 3,690-0-0, stating in their application depositing the money that the amount is due to Bidhi Chand and Kalian. The money was really payable to Kalian and the other three appellants, who had acquired the rights of Bidhi Chand. The sum which ought to have been deposited by the decree-holders really amounted to something over Rs. 4,000-0-0. There had been an error in calculation and therefore after the period of one month Kalian and his co-appellants put in a petition of objection in which they pointed out that the amount deposited was not the full amount and therefore the plaintiffs' claim under the terms of the decree should be dismissed. They made no mention of the error in entering Bidhi Chand's name in the application. The decree-holders in reply pleaded that the deficiency in deposit was due to miscalculation. They also pointed out the error in entering Bidhi Chand's name and asked for further extension of time to make good the deficiency. The court allowed the application. Hence the present appeal.

2. The argument of the appellants is that the court had no power whatever to extend the time; that Section 148 of the Code of Civil Procedure does not cover the case in which a time is fixed by the decree for the doing of some act mentioned in the decree, and that Order XXXIV, Rule 8, would not cover the case as the suit was not one for redemption. On behalf of the respondents it is contended that the order being an order extending time, no appeal whatsoever lies, as Order XLIII, Rule 1, Clause (o), only grants appeals when the court refuses to extend time. The reply to this is two-fold, first that the order granting time is a decree within the meaning of Section 47 of the Code, and secondly, that even if it be not a decree, the order passed is without jurisdiction and the court has power to set it aside in revision. In our opinion the order passed by the lower court was with jurisdiction and was justified by Order XXXIV, Rule 8. It is true that in its inception the suit was not a suit for redemption. It was a suit for sale, but directly the present appellants determined to stand upon their prior rights and demanded redemption, the suit became a compound suit and as a matter of fact the decree was both for sale and redemption, and so far as the decree between the present parties is concerned, it is clearly and simply a decree for redemption. In our opinion the proviso to Rule 8 of Order XXXIV, clearly applies and the lower court had power to pass the order. So far as the merits of the case are concerned we think the order of the court below is correct. The objection taken by the present appellant was simply as to the amount and the court below was satisfied that there was a bona fide mistake in calculation. As to the entry of Bidhi Chand's name the error was pointed out by the plaintiffs themselves. The lower court's order has done material justice. We see no reason to interfere and dismiss the appeal with costs.


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