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Ram Dhani Sahu Vs. Lalit Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.220
AppellantRam Dhani Sahu
RespondentLalit Singh and ors.
Excerpt:
transfer of property act (iv of 1882), sections 92, 93 - application to enlarge time for payment--application to the court of first instance and not to the appellate court. - - we think that this preliminary objection is well-founded......to pass over without payment. the present application is now made to this court to extend the time for payment.2. a preliminary objection is raised to the application to the effect that the proper court to which this application should be made is the court of first instance. we think that this preliminary objection is well-founded. the question as to the proper court to which such an application should be presented was considered by a bench of this court of which one of us was a member, in the case of sheo narain v. chunni lal 23 a. 88. in the judgment in that case the authorities are reviewed and the language of section 92 of the transfer of property act considered, with the result that the court came to the conclusion that a preliminary objection similar to the one now put forward.....
Judgment:

1. This is an application by Ram Dhani Sahu, the appellant, for an extension of the time fixed by this Court for payment of a mortgage debt under a decree of the 23rd of July 1908. By that decree the appellant was directed to pay a prior mortgage on or before the 5th of November 1908. Owing to delay in obtaining a copy of the judgment, the date which was so fixed was allowed to pass over without payment. The present application is now made to this Court to extend the time for payment.

2. A preliminary objection is raised to the application to the effect that the proper Court to which this application should be made is the Court of first instance. We think that this preliminary objection is well-founded. The question as to the proper Court to which such an application should be presented was considered by a Bench of this Court of which one of us was a member, in the case of Sheo Narain v. Chunni Lal 23 A. 88. In the judgment in that case the authorities are reviewed and the language of Section 92 of the Transfer of Property Act considered, with the result that the Court came to the conclusion that a preliminary objection similar to the one now put forward was bound to prevail; that when a decree for redemption under Section 92 of the Transfer of Property Act, 1882, has been made by an appellate Court, an application under the last paragraph of Section 93 must be made not to that Court, but to the Court of first instance. It is pointed out to us that this ruling was not followed by our brother Richards in the case of Babu Prasad v. Khiali Ram 1906 A.W.N. 203. Our learned brother in that case held that although the Court of first instance was the proper Court for dealing with applications of the kind, yet the appellate Court had jurisdiction also to allow an enlargement of time in cases in which there had been appeals. We are unable to agree in the view expressed by our learned brother. We are of opinion that the earlier ruling is correct. We, therefore, allow the preliminary objection, but we do not express any opinion as to the merits of the application. It is stated that the money payable to the prior mortgagee has actually been paid and a receipt therefor obtained. Under these circumstances there will possibly be little difficulty in obtaining an extension of time from the proper Court.

3. We dismiss the application, but under the circumstances, without costs.


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