1. The decree that was passed by the District Munsif upon this suit for redemption, though styled a preliminary decree and passed under the Code of Civil Procedure, 1908, provided for sale of the mortgaged properties if the money required for redemption was not paid by a certain date. There was thus no need for any one to apply for an order for sale. But in a redemption suit, the decree-holder being the mortgagor, it has been held in Govinda Taragan v. Veeran 12 Ind. Cas. 432. And Civil Miscellaneous Second Appeal No. 99 of 1915 and Mahomed Abdul Kadir v. Sami Pandia Tevar 60 Ind. Cas. 267. that he as well as the mortgagee has aright to execute the decree by applying for sale, and I think we should follow those decisions.
2. As regards the applications of 4th April 1916 and 23rd June 1916, for an extension of time for depositing the redemption money in Court, it may be conceded that they did not aid the particular form of execution which had ultimately been reached, but if they were bona fide they may well be said to have been in aid of that portion of the decree which related to redemption, and I think the decree-must be treated as a whole and not split up into sections. This is the view taken in recent decision Second Appeal No. 2405 of 1917 Pusarafu Venkata Reddayya v. Thorama Bayakayya 69 Ind. Cas. : 277 to which I was a party. If they were in any sense aids to execution they should be treated as steps-in-aid of execution.
3. In Abdul Kadir Rowther v. Krishna Malamal Nair 23 Ind. Cas. 533 ; Sadasiva Aiyar, observed that an application by the decree-holder to give time to the judgment-debtor merely as a matter of grace would be a step in retardation. In the present case the applicant, though he was the decree-holder, was the person who had to pay and he was applying for time not as a matter of grace to a judgment-debtor but in order the better to enable himself to execute the decree, the execution of which would have been completed as soon as the redemption money was paid.
4. The Subordinate Judge in appeal made the comment on these applications that it could not be sad that they were made in execution. The law only requires that they should be applications in accordance with law to the proper Court and they appear to have been that.
5. I, therefore, agree with my learned colleague that this appeal should be allowed with costs in both Courts.
6. This is a matter arising in execution of a decree for the redemption or a usufructury mortgage in South Malabar. The final decree of the High Court, dated the 16th October 1913 allowed three month's time for redemption. The three months expired on the 16th (not 15th) January 1914. In his present application, dated 22nd December 1917 the decree-holder (plaintiff) applied for sale.
7. It has been held in Nanu Nair v. Kundan Ashlamirlhi Namoudripad 47 Ind. Cas. 914 that, in cases failing under the Malabar Tenants Improvements Compensation Act, the provisions in-, Order XXXiV of the Code of Civil Procedure are modified by Section 6 of that Act in so tar as they are inconsistent With the latter, and that under the local Act, only one decree in redemption suits need be passed. The Subordinate Judge in an easier stage of the proceedings of this case also acted this upon. In this view the question decided in Govinda Taragan v. Veeran 12 Ind. Cas. 432 and Civil Miscellaneous Second Appeal No. 99 of 1915 and Mahomed Abdul Kadir v. Sami Pandui Tevar 60 Ind. Cas. 267 whether a mortgagor who obtained a decree for redemption can apply for sale, when no final decree is passed under Order XXXIV, Rule 4 which enables the mortgagee only to apply for the passing of a final decree does not arise, though I may add, if it arises, I am inclined to follow those decisions and do not share the doubts expressed by Seshagiri Aiyar, J. in the last of them.
8. But it has also been pointed out in the some case Nanu Nair v. Kundan Ashtamarthi Nambudripad (1918) M.W.N. 551: 'Provisions like directions for sale in default, allowing time, to pay moneys declared as due and; so on, not inconsistent with the Improvements Acts and directed or allowed by the new Civil Procedure Code to be mentioned in decrees for redemption ejectment, can, of course, be mentioned in decrees passed in suits falling under the Compensation Act also.'
9. It follows that the mortgagor is entitled to apply for extension of the time allowed to him in the decree for redemption. In this case, two such applications were filed by the decree-holder on 4th April 1916 and 23rd Jun 1916. The District Munsif help that they operated as steps-in-aid of execution and saved the present application from being barred by limitation. The Subordinate Judge reversed the order of the District Munsif on the ground that they were not in aid of the execution, because (1) the applications were not made when any execution application was pending and it cannot be said that they were made in execution (which is true), and (2) they retard execution and not aid it.
10. In my opinion there is no warrant for the view that an application to take a step-in-aid of execution should be made in execution and no authority has been cited by the Subordinate judge or the learned Vakil for the respondent in its support.
11. On the second ground also I am unable to agree with the learned Subordinate Judge. Ordinarily, it is the judgment-debtors that have to pay or do some act under decrees in cider to avoid sale, and applications by than for extension of time, retard execution and do not aid it. But it does not allowed that in redemption decrees and similar decrees, while the decree-holder has to pay before obtaining execution and asks for extension of the time allowed to him for payment, such application does not aid him, though it may retard execution of the decree. It aids; him in the execution of the portion of the decree relating to redemption which he cannot get without extension, of the time see Pitam Singh v. Tota Singh 29 A. 301 : 4 A.L.J. 184 : A.W.N. (1907) 74. As my learned brother observed in the course of the argument, late redemption is better than no redemption. It may be that those applications do not aid the particular kind of execution now sought, viz., sale which was a relief granted as alternative to the relief of redemption. It is enough that they aid the decree-holder in the execution of some portion of the decree vide Kalidas Manchand v. Varjivan Rangji 15 B. 245 : 8 Ind. Dec. (N.S.) 166 especially when that is the preliminary object of the decree holder, even though in the events that happened the decree-holder did not derive the assistance sought. In my opinion the proper test in deciding such a question is whether the step aids the execution. The other test is whether it accelerates or retards execution see Kartich Nath Pandey v. Juggernaih Ram 27 C. 265 and Abdul Kadir Rowthcv v. Krishna Malamal Nair 23 Ind. Cas. 533 . Though in many cases it amounts to the same thing, it may in some cases (such as this) turn out to be fallacious.
12. I would reverse the order of the Sub-ordinate Judge and restore that of the District Munsif with costs here and in the lower Appellate Court.