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Rambrichh Rai Vs. Sarbanand Rai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported in2Ind.Cas.466
AppellantRambrichh Rai
RespondentSarbanand Rai
Cases ReferredSee Rango v. Bhomshetti
Excerpt:
transfer of property act (iv of 1882), section 93 - redemption of usafructuary mortgage--decree fixing time for payment--payment not made within the period fixed--extension of time--bight of redemption nut ex inguished. - - it is to be regretted in the present case that the plaintiff did not expressly make an application to the court of first instance to postpone the date of payment in the manner provided for by the last clause of section 93. it has been held that such application can be made even after the time has expired, and that an application in writing is not necessary although clearly desirable......and it is so stated by the respondent's vakil. the decree provided that if the money was not so paid the property should be sold. section 93 of the transfer of. property act which was in force at the date of the present proceedings, provides that if payment of the decretal amount and costs is not made, the defendant in the case of a usufructuary or simple mortgage may apply for an order, that the mortgaged property be sold and that if such application is made the court shall pass an order that such property or sufficient part thereof be sold, and that the proceeds of the sale after defraying the expenses of the sale be paid into court, and applied as therein provided. on the passing of any such order the plaintiff's right to redeem and the security shall, as regards the property.....
Judgment:

Richards, J.

1. This appeal raises a question of considerable difficulty. The suit was one for redemption. The plaintiff mortgagor obtained a decree on 30th September 1907. The amount ascertained to be due on foot of the mortgage was the sum of Rs. 575, and the plaintiff was directed to pay in this sum within 60 days. Accordingly the time for payment of the money expired on 29th November 1907. The money was paid in on 30th November, one day late. The Court of first instance ordered restitution. The lower appellate Court reversed that decision and refused the plaintiff relief on the ground that the money was paid in too late. It is evident from the pleadings and the form of the decree that the mortgage was a usufructuary mortgage, and it is so stated by the respondent's vakil. The decree provided that if the money was not so paid the property should be sold. Section 93 of the Transfer of. Property Act which was in force at the date of the present proceedings, provides that if payment of the decretal amount and costs is not made, the defendant in the case of a usufructuary or simple mortgage may apply for an order, that the mortgaged property be sold and that if such application is made the Court shall pass an order that such property or sufficient part thereof be sold, and that the proceeds of the sale after defraying the expenses of the sale be paid into Court, and applied as therein provided. On the passing of any such order the plaintiff's right to redeem and the security shall, as regards the property affected by the order, both be extinguished. A perusal of this section shows that the penalty to the plaintiff who has neglected to pay in the amount within the prescribed time is that the defendant may apply for an order which, if granted, will have the effect of extinguishing all rights to redeem. Bearing in mind that the Courts always favour redemption, I think that the fair inference to be drawn from the section is that the plaintiff retains the right to redeem until an order is made under the section. It seems to me that the section provides that the only way in which a mortgagee can extinguish the right of redemption without bringing a suit himself is to obtain an order in the manner provided by Section 93. I do not think that the Legislature could ever have intended that a mortgagee would have a right to remain in possession as mortgagee whilst the mortgagor would have no power to redeem. It is to be regretted in the present case that the plaintiff did not expressly make an application to the Court of first instance to postpone the date of payment in the manner provided for by the last clause of Section 93. It has been held that such application can be made even after the time has expired, and that an application in writing is not necessary although clearly desirable. It has been the practice of the Courts to extend the time as a matter of course. See Rango v. Bhomshetti 26 B. 121. In the present case the defendant has suffered no injury. He remains in possession of the mortgaged property. No application for an order under Section 93 has been made. Even if such an order were made, the plaintiff would still under Order XXI, Rule 69, have a right to stay the sale of the property on payment of the debt and costs. Under all the circumstances, I think, I am justified in treating the application in the Court of first instance as an application to postpone the day of payment. I accordingly postpone the day to the corresponding day of the present year, namely 29th November 1909. This would prevent any difficulty about crops. I allow the appeal, and set aside the orders of both the Courts below. Parties shall abide their own costs in all Courts.


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