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Ambika Pershad Vs. Salamat Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All302; 29Ind.Cas.438
AppellantAmbika Pershad
RespondentSalamat Khan
Excerpt:
mortgage - redemption decree--failure to pay within time fixed--payment before decree absolute--mortgagor if entitled to redeem. - .....in execution commenced, granted the application. the judgment-debtors objected that the time for payment had passed and money could no longer be received and the application for execution should be dismissed. the court of first instance did not accept this contention and allowed the proceeding to continue; but on appeal the learned district judge set aside the munsifs decision and ordered that the execution case should be dismissed. the case has come here in appeal and the contention is raised that inasmuch as the decree had not been made absolute, the appellant was entitled to redeem the property on payment of rs. 2-8.2. this plea appears to me to be a valid one and prevails. i set aside the order of the lower appellate court and direct that court to replace this case upon its roll of.....
Judgment:

George Knox, J.

1. Ambika Pershad, the appellant, has obtained a decree against Salamat Khan, the respondent. This was based upon a compromise arrived at between the parties, according to which the appellant was entitled to redeem the property, if he paid Rs. 2-8. Regarding the payment of Rs. 2-8 the decree saya in one place that it is to be paid on Phagun Sudi purnamashi. In another place it is said that Rs. 2-8 was to be paid at the time of obtaining possession. The date Phagun Sudi purnamashi had passed when the decree-holder came into Court with an application to execute the decree. He, however, brought Rs. 2-8 with him and prayed that they might be made over to the judgment-debtors. The Court accepted Rs. 2-8, but does not seem to have passed any definite orders about it. The Court of first instance, however, recognising that Rs. 2-8 had been paid before proceedings in execution commenced, granted the application. The judgment-debtors objected that the time for payment had passed and money could no longer be received and the application for execution should be dismissed. The Court of first instance did not accept this contention and allowed the proceeding to continue; but on appeal the learned District Judge set aside the Munsifs decision and ordered that the execution case should be dismissed. The case has come here in appeal and the contention is raised that inasmuch as the decree had not been made absolute, the appellant was entitled to redeem the property on payment of Rs. 2-8.

2. This plea appears to me to be a valid one and prevails. I set aside the order of the lower Appellate Court and direct that Court to replace this case upon its roll of pending appeals and to determine it according to law. Costs will follow the event.


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