1. The plaintiff obtained a decree on December 19th, 1887, entitling him to redeem certain property on payment of the redemption amount to 2nd defendant within six months from 'the date of that decree. The 2nd defendant appealed and the District Court on 29th September 1888 ordered that the decree of the Lower Court be confirmed and this appeal be dismissed. The plaintiff then applied for execution, but was resisted by 2nd defendant under Section 92 of the Transfer of Property Act on the ground that as plaintiff had nob paid the redemption amount within six months of the original decree, the right to redeem was barred. The District Munsif held upon the authority of Noor Ali Chowdhuri v. Koni Meah I. L. R. 13 C 13, and Daulat v. Bhukandas Manek-chand I. L. R. 11 B 172, that the appeal decree of the District Court incorporated the decree of the first court and thus became the only decree capable of execution, hence that the petition for execution was not barred. On appeal the District Judge following Appeal against Appellate Order No. 23 of 1888, on the file of this court, (unreported), held that the mere fact that an appeal was preferred would not extend the time allowed for payment and reversed the order of the District Munsif.
2. The appeal (Appeal against Appellate Order No. 20 of 1889) was first heard by a single judge [Mr. Justice Shephard) who held that he was bound by the decision in Appeal against Appellate Order No. 23 of 1888. Hence this appeal under the Letters Patent.
3. We have no doubt that when an appeal has been heard the decree of the Appellate Court becomes the final decree in the suit and the only one capable of execution. This doctrine has been recognized in various decided cases, [Arunachella Thudayan v. Veludayan 5 M. H. C. R. 215; Muhammad Sulaiman Khan v. Muhammad Tar Khan I. L. R. 11 A 267; and I.L.13 C 13,) and has been referred to with approval by the Privy Council in Kistokinlcer Ghose Roy v. Burrodacaunt Singh Roy 10 B. L. R. 101. Granting however that the decree of the Appellate Court is the decree to be executed, the further question arises whether that decree incorporates the original date fixed for payment of the redemption money, or modifies the original decree by prescribing that the money shall be paid within six months of the appellate decree.
4. As the decree of the Appellate Court is drawn there is in words no modification of the original order, but the decree of the first court is simply confirmed as it stands. In Appeal against Appellate Order No. 23 of 1888, which has been followed by the
5. District Judge and by the learned judge in the Miscellaneous Court, a date (March 31st, 1887), was actually fixed in words to be the date within which the property must be redeemed. In the case before us the direction is that the plaintiff do pay the money 'within six months from the date of this decree,' and the decree is dated December 19th, 1887. The cases are therefore not quite parallel though we doubt whether the fact that January 19th, 1888, is not mentioned in the decree as the date within which redemption must be made can affect the case.
6. For the appellants we were referred to the decisions reported in I. L. R. 13 C. 13; Rup Chand v. Shamsh-ul-Jehan I. L. R. 11 A 346 and I. L. R. 11 B 172. These no doubt support the contention of the appellant, though the Bombay Court recognized the difficulty of holding that a confirmation and incorporation of a decree should be attended with a change of time though nothing is said to that effect.
7. In coming to the conclusion referred to above the different High Courts have not noticed the proviso to Section 93 of the Transfer of Property Act by which it is provided that upon good cause shown and upon such terms as it thinks fit, a court may from time to time postpone the day fixed under Section 92 for payment to the defendant. This provision is in accordance with the practice of English law and it gives the court full discretionary power to act from time to time as circumstances may require.
8. It is evident that unless a plaintiff either makes use of this proviso or applies for execution of the decree he is liable to find himself deprived of the fruits of his decree by the defendant adopting the simple expedient of first preferring an appeal and then withdrawing it as soon as the time for redemption has expired. An instance of this is reported in Patloji v. Ganu I. L. R. 15 B. 370.
9. The payment of the redemption money by the plaintiff within the time allowed by the decree is a condition precedent to his being allowed to execute the decree, and though a decree passed on an appeal preferred by the defendant may give plaintiff a fresh starting point of time within which he may execute, it does not necessarily, unless the appeal decree so declares, give him an exten-, sion of the time during which he must fulfil the condition precedent. Clearly the mere pendency of the appeal will not extend the time I. L. B 15 B 370.
10. When the defendant has preferred an appeal he will naturally not be willing to accept from plaintiff the redemption amount, and if plaintiff pays it into court his capital will be idle. The legislature has however provided a remedy (Section 93, Transfer of property Act) and plaintiff can either apply for extension of time during the pendency of the appeal, or by applying for execution compel defendant to furnish some adequate security which will protect his interests.
11. While recognizing therefore, that the decree of the Appellate Court is the only decree capable of execution we think it is open to doubt whether that decree--when it simply purports to incorporate and confirm the decree of the Court of First instance--can be held to vary that decree by the grant of further time during which redemption may be made--the time fixed by the original decree having already expired--without express words to that effect.
12. But inasmuch as the decree of the Appellate Court becomes the final decree in the suit we think that Section 92 of the Transfer of Property Act imposes upon that court the duty (if the decree of the first court has not been executed) of prescribing a date within six months of the date of that decree within which plaintiff must pay the redemption money to the defendant or into court.
13. In this respect the decree of the Appellate Court is defective, and we think the proper course would have been to give the plaintiff time before passing orders on the execution petition to apply to the District Court to amend the decree in accordance with the statutory directions contained in Section 92 of Act IV of 1882. Taking this view we set aside the orders that have been passed and remand the application for execution to the Court of First Instance in order that the District Munsif may act in accordance with these directions.
14. The question not being without difficulty we shall make no order as to costs.