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K. Desu Chetty Vs. Ghansham Doss - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in2Ind.Cas.616
AppellantK. Desu Chetty
RespondentGhansham Doss
Cases ReferredAudipuranam Pillay v. Gopalsamy Muduly
Excerpt:
mortgage - redemption--decree by consent fixing time for redemption--failure to redeem within time--dismissal of application for extension of time--application by mortgagee for order absolute--practice--whether mortgagor can be permitted to redeem. - - i am not satisfied that this is so having regard to the form of the decree which is that of an ordinary decree for redemption but as an application for an order absolute is treated in this court as an application for execution, i think this application may be treated as an application for an order absolute and make the order and grant execution as prayed......claim. the defendants now put in an application for execution and it is contended that as it is a consent decree no order absolute is necessary. i am not satisfied that this is so having regard to the form of the decree which is that of an ordinary decree for redemption but as an application for an order absolute is treated in this court as an application for execution, i think this application may be treated as an application for an order absolute and make the order and grant execution as prayed.2. the plaintiff, however, comes forward and contends that he has still a right to redeem although the time fixed for redemption has elapsed and 1 have refused to extend it. this contention is based on the dictum of shephard, j. in vallabhavalya rajah v. vedapuratti 19 m.k 40 who observed that.....
Judgment:

1. In this case a decree for redemption was passed by consent on the 18th August 1908, by which the plaintiff was given time until the 20th October for redemption. The money was not paid and an application for extension of time was made to me under Section 93, Transfer of Property Act, which I rejected as the decree was a consent one and the defendant had waived a considerable part of his claim. The defendants now put in an application for execution and it is contended that as it is a consent decree no order absolute is necessary. I am not satisfied that this is so having regard to the form of the decree which is that of an ordinary decree for redemption but as an application for an order absolute is treated in this Court as an application for execution, I think this application may be treated as an application for an order absolute and make the order and grant execution as prayed.

2. The plaintiff, however, comes forward and contends that he has still a right to redeem although the time fixed for redemption has elapsed and 1 have refused to extend it. This contention is based on the dictum of Shephard, J. in Vallabhavalya Rajah v. Vedapuratti 19 M.k 40 who observed that although a mortgagor who obtains a decree for redemption and allows the time to elapse cannot pay money into Court and obtain the recovery of the mortgaged property, still if the mortgagee comes to Court for an order absolute for sale the mortgagor would still have the right to take steps to set aside the sale under the provisions of the Civil Procedure Code as to which see Audipuranam Pillay v. Gopalsamy Muduly 18 M.L.J. 259. Such provisions have no application where there is not an order for sale, and, in my opinion, the scheme of the Transfer of Property Act is that a mortgagor who gets a decree for redemption is liable to foreclosure if he fails to pay within the time limited unless he gets an extension under Section 93. This would also appear to be the English law. For these reasons I overrule the objection. In the view I have taken it is unnecessary to consider whether the fact that the decree was passed by consent makes any difference. Execution ordered and possession.


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