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Lala Beni Prasad and anr. Vs. Harnam Das and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in39Ind.Cas.630
AppellantLala Beni Prasad and anr.
RespondentHarnam Das and ors.
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 8 - redemption, suit for--pinal decree--application to extend time--court, proper. - .....ind. cas. 220 ; 31 a. 328 ; 6 a.l.j. 251. it is true that that case was decided before the present code of civil procedure came into operation. we think, however, that there has been no change in the law. certain sections of the transfer of property act have been transferred to the code of civil procedure as relating to matters of procedure. under the provisions of the code in a suit for redemption of a mortgage there is to be first a preliminary decree, and then a final decree. it is the final decree which has to be made and carried into execution by the court of first instance. this final decree is made under order xxxiv, rule 8, and the power to extend the time rests with that court under that. rule. this very question has recently been decided in the madras high court in the case of.....
Judgment:

1. This application arises under the following circumstances. A suit was brought for redemption. The first Court decreed the plaintiff's claim conditional upon payment of a certain sum into Court. This Court modified the decree of the Court of first instance by making the redemption money considerably larger. The present application purports to be under Order XXXIV, Rule 8, for an extension of time within which to pay in the mortgage-money. A preliminary objection has been taken that the proper Court to which the application ought to have been made is the Court of first instance. We think that there is force in this objection. The point was expressly decided in the case of Ram Dhani Sahu v. Lalit Singh 2 Ind. Cas. 220 ; 31 A. 328 ; 6 A.L.J. 251. It is true that that case was decided before the present Code of Civil Procedure came into operation. We think, however, that there has been no change in the law. Certain sections of the Transfer of Property Act have been transferred to the Code of Civil Procedure as relating to matters of procedure. Under the provisions of the Code in a suit for redemption of a mortgage there is to be first a preliminary decree, and then a final decree. It is the final decree which has to be made and carried into execution by the Court of first instance. This final decree is made under Order XXXIV, Rule 8, and the power to extend the time rests with that Court under that. rule. This very question has recently been decided in the Madras High Court in the case of Dharmaraja Iyer v. Sreenivasa Mudaliar 31 Ind. Cas. 240 ; 2 L.W. 1074, 29 M.L.J. 708 ; 18 M.L.T. 486 ; 39 M. 87. We, of course, express no opinion upon the merits, which we have not considered. We dismiss the application with costs, including in this Court fees on the higher scale.


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