1. This is a defendants' appeal which has arisen out of a mortgage suit on an application by the decree-holder for a final decree. The facts are as follows :
Two persons, Hari Singh and Sahib Singh' on the 22nd of June 1871 created a simple mortgage over the property in suit in favour of one Sujan Singh (not the present respondent). On the 17th of March 1876 they created another simple mortgage on the property in favour of one Lachcho. On the 27th of July 1878 Sujan Singh sued upon his mortgage without impleading Lachcho, the puisne mortgagee. The property was finally put to sale in execution of the decree and was purchased by Rudra Singh, the husband of the appellant, Musammat Nand Kunwar, in May 1892. Since then she has been in possession thereof. On the 3rd of June 1911 Musammat Bhawani, daughter of the original puisne mortgagee, and her son brought a suit on the mortgage of 1876. The plaintiff impleaded the auction-purchaser under the sale of 1892 and also the representatives of the prior mortgagees. The decree that was passed is to be found at page 2 of the appellants' book, It decreed the plaintiff's claim for Rs. 6,000 with costs and future interest and gave the mortgagors a period of six months within which to redeem the mortgage. The decree then went on to say that if they failed to do this, then the plaintiff was to pay within nine months from the date of the decree a sum of Rs. 1,000 to defendant No. 1, i.e., the widow of Rudra Singh, and Rs. 2,005.9.9 to defendants Nos. 2 to 6, representatives of the prior mortgagee, and that if he paid those sums, then the said sums were to be added to the mortgage money due to him and he would be entitled to realise the entire amount by sale of the mortgaged property, but that if the plaintiff failed to pay the said sums, he should not be entitled to have the property sold by auction.
2. An appeal was preferred to the High Court by the present appellant, Musammat Nand Kunwar. She raised two contentions. The first was that the plaintiff had failed to establish his mortgage and was not entitled to any decree. The second was that in any event the whole sum of Rs. 3,005 9.9 should have been decreed as payable to her alone and not to the defendants Nos. 2 to 6, representatives of the original prior mortgagee. The Court held on the one point against her and on the other point in her favour. It held that the total sum of Rs. 3,005.9.9 was payable to her alone and that none of it was payable to the representatives of the prior mortgagee. It will thus be seen that this Court did not on appeal in any way increase the amount which the decree holder was directed to pay into Court to the defendants in order to enable them to put the properties to sale. There was, therefore, no question of the period of nine months being extended by this Court and no order was passed by this Court in respect to the extension of time. The plaintiff, Musammat Bhawani, failed to put into Court the sum of Rs. 3,005.9.9. The High Court's decree was passed on the 12th of December 1912. On the 22nd of February 1914 Musammat Bhawani transferred her decree in favour of the present respondent, Sujan Singh. Sujan Singh made an application to have his name brought on the record but withdrew it. He finally made the application out of which this appeal has arisen on the 11th of December 1915. He asked to have his name brought upon the record as decree-holder and to have a final decree for sale prepared in his favour. He stated in his application that he was willing to pay the sum which the Court had ordered the decree-holder to pay in favour of Musammat Nand Kunwar. The lower Court gave him a fortnight within which to pay the money into Court. He paid it and on the 11th of April 1917 the Court below directed a final decree for sale to be prepared. It is from this final decree for sale that the pre-sent appeal has been preferred. It is urged that the Court below had no power whatsoever to extend the time, that Order XXXIV, Rule 8, does not apply to the circumstances of the present case, in that it is not a redemption decree. It is further pleaded that the application for the preparation of the final decree is barred by limitation.
3. On behalf of the respondent it is urged that the case is governed by the ruling of this Court in Kalian v. Sadho 18 Ind. Cas. 14 : 11 A.L.J. 62 : 35 A. 116, that virtually the direction for the payment of Rs. 3,005.9.9 was a redemption decree and that Order XXXIV, Rule 8, therefore, applied and the lower Court had jurisdiction to extend the time. Our attention has also been called to the decision of the Madras High Court in Idumbu Narayan v. Pethu Reddy 54 Ind. Cas. 451 : 43 M. 357 : 37 M.L.J. 695 : 11 L.W. 25. So far as the case of Kalian v. Sadho 18 Ind. Cas. 14 : 11 A.L.J. 62 : 35 A. 116 is concerned, it is not on all fours with the present case. That was a suit in which there were subsisting prior mortgages and the prior mortgagees were made parties to the suit and the puisne mortgagee offered to redeem. He also sought to recover his own money and asked for the sale of the property to recover the total amounts due on all the mortgages. His prayer was allowed. He was given time within which to redeem the prior mortgages and this Court held that Order XXXIV, Rule 8, certainly applied to that portion of the decree. That decision, in our opinion, was correct for it was partly a decree for redemption to which the order quoted clearly applied. With the decision of the Madras case we, with all respect, find ourselves unable to agree. That was a case where a co-sharer sued for partition and sued also to recover his share in a bit of the family estate which had been alienated by other members of the family, which alienation the Court found to be binding to the extent of Rs. 800. The Court allowed him to obtain possession of the property conditional on his paying his share, Rs. 400, of the money. The learned Judges who decided the case treated that decree as a redemption decree and applied Order XXXIV, Rule 8. Order XXXIV, Rule 8, with the proviso attached to it applies only to redemption decrees. There is a similar provision to be found in Order XXXIV, Rule 3, which relates to suits for foreclosure. No such provision is to be found in relation to simple decrees for sale. In the present case the present appellant Musammat Nand Kunwar was not a prior mortgagee and no order could have been passed that in case of default of payment by the plaintiff of the sum of Rs. 3,000 odd, the present appellant should have power to put the property to sale to recover that amount. The decree was merely an equitable decree passed in the circumstances of the case. The prior mortgage no longer existed. It had marged into the decree and that decree had been executed and satisfied. The decree passed by the first Court ordering payment of part of the money to the representatives of the prior mortgagee was set aside by this Court and the whole annual was made payable to the representative of the auction-purchaser. No redemption decree could have been passed in this case, nor was any redemption decree passed and the only result, according to the decree, of the plaintiff's failure to put the money into Court was that she was not able to put the property to sale. This was tantamount to a dismissal of her suit in default of payment, for without payment it was impossible for her to recover any money by sale of the property. There was no personal decree. In our opinion Order XXXIV Rule 8, can apply only, as the law says it shall apply, to redemption suits. The present was no redemption suit and in our opinion the Court below had no jurisdiction to extend the time. The order of the Court in the decree directing payment of the money within a specified time has not been obeyed and the result followed as laid down in the decree. The respondent, therefore, was not entitled to a final decree for sale. Incidentally we call the attention of the Court below to the following words in the proviso to Order XXXIV Rule 8, 'upon good cause shown.' As far as we are able to discover no cause whatever, good, bad or indifferent, was shown. The Court appears to have acted in a purely arbitrary manner without assigning any reasons. The result, therefore, is that we allow the appeal and set aside the decree of the Court below. The application for final decree will stand dismissed with cots in both Courts.