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Guruswami Naidu Vs. Govindappa Naidu and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in145Ind.Cas.927
AppellantGuruswami Naidu
RespondentGovindappa Naidu and ors.
Cases ReferredVide Het Singh v. Tika Ram
Excerpt:
civil procedure code (act v of 1908), order xxxiv; rule 7 (2) - suit for recovery of possession after declaration of invalidity of mortgage--decree for possession on condition of payment--power to extend time--decree whether one for redemption. - - 451 :43 m 357 :37 m l j 695 :11 l w 25 :27 m l t 216, is distinctly in favour of the plaintiffs' contention. pethu reddy (1). where the payment of the amount within a certain time fixed as a condition for the recovery of the property, is one in respect of a mortgage, by way of redemption, (as in the present case), i fail to see why the court is not competent to extend the time under the aforesaid rule......of the district munsif of ranipet in c. m. p. 605 of 1931 in o.s. no. 12 of 1920, extending the time for payment of a sum of money, which according to the terms of the decree was to be paid, by plaintiffs within six months before recovering possession of the suit properties from the defendants. the district munsif construed the decree to be one substantially in the nature of a redemption decree, and in the exercise of his discretion under sub-rule (2) of rule 7 of order xxxiv, civil procedure code, granted an extension of time. the amount has also been paid into court. the correctness of this order is questioned in this civil revision petition. it is urged that the lower court is wrong in construing (he decree as in 1 he nature of a redemption decree, and that it had no jurisdiction.....
Judgment:

Sundaram Chetty, J.

1. This Revision Petition has been filed by the 3rd defend ant against the order of the District Munsif of Ranipet in C. M. P. 605 of 1931 in O.S. No. 12 of 1920, extending the time for payment of a sum of money, which according to the terms of the decree was to be paid, by plaintiffs within six months before recovering possession of the suit properties from the defendants. The District Munsif construed the decree to be one substantially in the nature of a redemption decree, and in the exercise of his discretion under sub-Rule (2) of Rule 7 of Order XXXIV, Civil Procedure Code, granted an extension of time. The amount has also been paid into court. The correctness of this order is questioned in this Civil Revision Petition. It is urged that the lower Court is wrong in construing (he decree as in 1 he nature of a redemption decree, and that it had no jurisdiction to extend the time fixed in the decree for payment. It is further argued by Mr. Rajah Ayyar for the petitioner, that the soundness of the decision in Idambu Parayan v. Pethu Reddy 54 Ind. Cas. 451 : 43 M 357 : 37 M L J 695 : 11 L W 25 : 27 M L T 216, on which the order of the lower Court rests is open to doubt, and that decision requires reconsideration.

2. Before discussing this point, let me state briefly the facts of this case. The plaintiffs (as reversioners) filed O.S. No. 12 of 1920 in the District Munsifs Court, Ranipet, for a declaration of their reversionary right and of the invalidity of a mortgage and sale effected by the widow (1st defendant). During the pendency of the suit, the widow died and the plaintiffs appear to have got the plaint amended, by the addition of a prayer for recovery of possession of the suit properties free from all incumbrances created by the widow. After a due inquiry the court seems to have found that a portion of the mortgage debt was valid and binding on the reversioners (plaintiffs) and consequently they could not recover possession unconditionally. It looks as if the court thought, that without paying a certain sum of money to the extent of redeeming the mortgages binding on plaintiffs, they should not recover possession. The decretal portion of the judgment is worded thus:

The plaintiffs will therefore recover the suit properties from 3rd defendant on paying Rs. 2 819 9-11. Six months' time is granted for payment of the money. The properties will be a charge for the money till then. I pass a decree accordingly.

3. Against this decree, there was an appeal to the first Appellate Court, and the, matter went up to the High Court which ended in plaintiffs' favour on January 12, 1931. The present petition for extension of time for the payment was put in subsequently and granted by the District Munsif.

4. The point for consideration is, what is the nature of the decree in question. A decree for redemption can ordinarily be passed in a suit in which a mortgage is involved as the subject-matter. Unless there is a mortgage lien on the property (or a charge thereon for which the same remedy has to be sought), a decree directing the payment of money by one party to another, cannot strictly be termed a redemption decree. In the present case, there is no insurmountable difficulty in regarding the decree as one in the nature, of a redemption decree, as the amount which the plaintiffs were directed to pay was for a mortgage or mortgages held to be binding on them. The effect of the decree is, that without redeeming the mortgage by payment of the declared amount, possession cannot be recovered by the plaintiffs. It is however, contended by Mr. Rajah Ayyar, that the suit was not a suit for redemption, and the decree in such a suit cannot be called a redemption decree. I am unable to agree with this contention.

5. If a mortgagor sues for recovery of possession, alleging that the mortgage debt has been fully discharged, and frames the suit as one in ejectment, but the court find's that some amount is still due under the mortgage and the plaintiff cannot recover possession without discharging the debt, can it not pass a conditional decree and is not such a decree virtually a redemption decree. The decree is, in my opinion, one for redemption, though the frame of the suit is not akin to a suit for redemption of the mortgage. If authority is needed for this, the decision of a Bench of two learned Judges of this High Court (Sundara Iyer and Sadasiva Iyer, JJ.) supports this view: Vide Ranganatha Pillai v. Paripurnam 16 Ind. Cas. 217. (2).

6. If the decree passed can be reasonably treated as a decree directing the redemption of a mortgage and if for that purpose it fixes a period of time for payment of the money there is, in my opinion, no bar to the exercise of the discretionary power for extending such time, as provided in sub-Rule (2) of Rule 7 of Order XXXIV, Civil Procedure Code. The decision of a Fench of this High Court in Idumbu Parayan v. Pethu Reddy 54 Ind. Cas. 451 : 43 M 357 : 37 M L J 695 : 11 L W 25 : 27 M L T 216, is distinctly in favour of the plaintiffs' contention. In that case, a decree for recovery of possession of certain properties from the alienees, on payment of a sum of money by a certain date, was passed, without any provision as to the consequence of non-payment. Such a decree was passed in a suit for partition. It was not a suit for' redemption of a mortgage, nor does it appear that the amount which the plaintiffs were directed to pay was for iedeeming any mortgage. Still, it was held, that the decree was in terms and in effect one for redemption, so that the court would have jurisdiction to extend the time for payment under Order XXXIV, Rule 7. For the purposes of the present case, it is not necessary to go so far as the learned Judges went in Idumbu Parayan v. Pethu Reddy (1). Where the payment of the amount within a certain time fixed as a condition for the recovery of the property, is one in respect of a mortgage, by way of redemption, (as in the present case), I fail to see why the court is not competent to extend the time under the aforesaid rule. There may be some force in the appellant's contention, if the liability for the payment of the amount imposed on the plaintiff does not arise out of a mortgage or has no connection at all with a mortgage. Our attention is drawn to two decisions of the Allahabad High Court, viz. Kandhaiya Singh v, Kundan 57 Ind. Cas. 16 : 42 A 639 : 2 U P L R (A) 197 : 18 A L J 826 and Nand Kunwar v. Sujan Singh (4). The decision in Idumbu Parayan v. Pethu Reddy 54 Ind. Cas. 451 : 43 M 357 : 37 M L J 695 : 11 L W 25 : 27 M L T 216, has been dissented from. The learned Judges of the Allahabad High Court seem to hold that the court would have no jurisdiction to extend the time for payment under Order XXXIV, Civil Procedure Code, unless the suit wag expressly one for redemption of a mortgage, and the decree is also a redemption decree. This view is opposed to the decision of our High Court in Ranganatha J Mai v. Paripurnam 16 Ind. Cas. 217, already, referred to. In an earlier case of the Allahabad High Court Kalyan v. Sadho Lal 18 Ind. Cas. 14 : 35 A 116 : 11 A L J 62, a compound decree in plaintiffs' favour was passed, which was a decree for redemption coupled with a decree for sale, but the suit was not in form, a suit for redemption. It was however, held that the court had jurisdiction to extend the time fixed in the decree for redemption under Order XXXIV, Civil Procedure Code. This decision seems to have been approved in Nand Kunwar v. Sujan Singh 57 Ind. Cas. 1006 : 43 A 25 : 18 A L J 62. With respect, I should think, it would be too strict an interpretation of Rule 7 of Order XXXIV, Civil Procedure Code, to hold that the power to extend the time vested in the court cannot be exercised even if the decree is virtually one for redemption of a mortgage, unless the suit also is strictly in the form of a redemption suit.

7. If the effect of non-payment of the amount within the time fixed is also specified in the decree by means of a penalty clause such as, 'The suit will stand dismissed' or 'The plaintiff is debarred from redeeming'; there may be room for some doubt, as to whether the court can still extend the time or should only allow the decree to work itself out. Even in such a case, the Allahabad High Court went the length of holding that the court could extend the time: Vide Het Singh v. Tika Ram 14 Ind. Cas. 240 : 34 A 388; 9 A L J 381. In the present case no penalty clause of that kind is found in the decree, and there is nothing in the decree itself to fever the hands of the court in the matter of extending the time for payment. In my view the extension of the time granted by the lower Court in this case was not without jurisdiction. I would affirm that order and dismiss this petition with costs.

8. Pleader's fee is fixed at Rs. 100.

Pakenham Walsh, J.

9. I agree.


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