1. The plaintiff obtained a decree on 19th December 1887 entitling him to redeem certain property on payment of the redemption amount to second defendant within six months from the date of that decree. The second defendant appealed, and the District Court, on 29th September 1888, ordered that the decree of the lower Court be confirmed and this appeal dismissed. The plaintiff then applied for execution, but was resisted by second defendant under Section 92 of the Transfer of Property Act on the ground that as plaintiff had not 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 Cal. 13 and Daulat and Jagjivan v. Bhukandas Manekchand I.L.R. 11 Bom. 172 that the appeal decree of the District Court incorprated 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 Govindan v. Chapputti 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 was first heard by a single Judge (Mr. Justice Shephard), who held that he was bound by the decision in Govindan v. Chapputti 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--Arunachellathudayan v. Veludayan 5 M.H.C.R. 215 Muhammad Sulaiman Khan v. Muhammad Yar Khan I.L.R. 11 All. 267 and Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13--and has been referred to with approval by the Privy Council in Kistokinker 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 Govindan v. Chapputti, which has been followed by the 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.
5. For the appellants we were referred to the decisions in Noor Ali Chowdhuri v. Koni Meah I.L.R. 13 Cal. 13 Rup Chand v. Shamsh-ul-jehan I.L.R. 11 All. 346 and Daulat and Jaqjivan v. Bhukandas Manekchand I.L.R. 11 Bom. 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.
6. 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 twins 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.
7. 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 the case of Patloji v. Ganu I.L.R. 15 Bom. 370
8. 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 extension of the time during which he must fulfil the condition precedent. Clearly the mere pendency of the appeal will not extend the time--Patloji v. Ganu I.L.R. 15 Bom. 370
9. 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 he 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.
10. 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 he made, the time fixed by the original decree having already expired, without express words to that effect.
11. 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.
12. 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.
13. The question not being without difficulty, we shall make no order as to costs.