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Ayisa Umma and ors. Vs. Puttiyapurayil Kumnachumkandi Abdulla and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in76Ind.Cas.126
AppellantAyisa Umma and ors.
RespondentPuttiyapurayil Kumnachumkandi Abdulla and ors.
Cases Referred and Chalavadt Kottah v. Poloori Alimelammah
Excerpt:
procedure - application for final redemption decree--pre-emption suit by mortgagee--interim injunction staying further proceedings in redemption suit--dismissal of application for final decree--later application five years after date of original one, whether barred--injunction pendente lite, duration of. - - we have on the materials before us to decide as best we may, what was the intention of the court in its order. 2561, which petition clearly contemplated a temporary suspension pending the disposal of the pre-emption suit, and last that the amount already paid into the court as the redemption money was not withdrawn, as the affidavit in the lower appellate court has been retained in court throughout, consistently with the pendency of proceedings for the completion of the redemption,..........by which that decree was substantially confirmed, ending on 19th january 1916. whilst this pre-emption suit was penning before the district munsif, an injunction pendente lite was granted to restrain the further proceedings in the redemption suit and the passing of final decree. the lower appellate court has dealt with the case, allowing execution to proceed on the footing that this injuction remained in force until the end of pre-emption suit on 19th january 1916 in the high court, and that the right to proceed with the application for a final decree revived on that date and the present application for final decree, whatever exact description be applied to it, was in time since it was made on 18th february 1918 within three years from the time when the right to apply accrued, the.....
Judgment:

1. We first simply state the facts as the lower Appellate Court dealt with them. They are, that the decree-holder, here respondent, holds a preliminary decree for redemption dated 5th April 1913, he being a purchaser at a Court sale from the original mortgagor. The appellant is the mortgagee, against whom redemption is asked for. On 18th August 1913 the respondent made an application for a final decree. There was some discussion in the lower Appellate Court as to the nature of that application but before us it has been treated without cispute as one in execution. Whilst that application was pending, the mortgagee respondent sued to enforce his alleged right of pre-emption; and he obtained a decree recognising that right in the Court of first instance on 4th September 1914, the proceedings in the Appellate Court by which that decree was substantially confirmed, ending on 19th January 1916. Whilst this pre-emption suit was penning before the District Munsif, an injunction pendente lite was granted to restrain the further proceedings in the redemption suit and the passing of final decree. The lower Appellate Court has dealt with the case, allowing execution to proceed on the footing that this injuction remained in force until the end of pre-emption suit on 19th January 1916 in the High Court, and that the right to proceed with the application for a final decree revived on that date and the present application for final decree, whatever exact description be applied to it, was in time since it was made on 18th February 1918 within three years from the time when the right to apply accrued, the exclusion of the period covered by the injunction being legitimate.

2. That ground alone cannot jastify the lower Court's decision, for it is clear with reference to Bolton v. London Sehoel Board (1878) 7 Ch. D. 766 : 47 L.J. Ch. 461 : 26 W.R. 549, and Chalavadt Kottah v. Poloori Alimelammah 31 M. 71 : 18 M.L.J. 46 : 3 M.L.T. 329, that an injunction granted pendente lite until the disposal of the suit or further orders will end in any case on the disposal of the suit or on any earlier date on which further orders may be passed, the reference to further orders not applying to anything after the disposal. Something was said before us on behalf of the respondents, doubtless on instructions and also with reference to the respondents' affidavit re the wording of the injunction, the suggestion being that the disposal of the suit 'and any further orders' not 'or further orders' was the limit specified. We are not prepared to accept this on the material before us when no ad mission has been made by the appellant that the normal form of injunction was departed from in this case. The lower Appellate Court's decision must therefore, be supported, if at all, on other grounds.

3. In order to deal with these grounds a further reference to the circumstances is necessary. We may observe that we have found considerable difficulty in arriving at them. But we have endeavoured to do so, because the whole discussion turns on the meaning of the order of dismissal passed on 20th October 1913. Is the dismissal, which is undoubtedly considered to be taken literally as absolutely terminating the proceedings or is it, as the respondent says, to be taken in the wide sense, which unfortunately, in our opinion, has received general recognition, of mere termination for administrative or statistical purposes amounting only to a suspension of proceedings until some obstacle has been removed or some stage contemplated by the Court and parties has been reached? The respondeat of course contends that the step contemplated was the final disposal of the pre-emption suit. We have on the materials before us to decide as best we may, what was the intention of the Court in its order. The difficulty arises from the fact, not only that certain further materials have been placed before us which were not before the lower Court but that we have felt considerable doubt referring to one incident which the lower Court took for granted. The lower Court took for granted that there was an injunction restraining the redemption proceedings. There is no doubt that the existence of such an injunction was admitted in the affidavit of the respondent dated 18th February 1918 the number of the application for injunction being actually specified. We can only say that it is a pity that the actual record connected with that application has not been placed before us and that, in spite of our endeavours, we have not been able to obtain it. The remarkable thing is, as the numbers show, that after that application has been made another application was made by the present appellant, No. 2561/13 asking for a suspension of the redemption proceedings pending the conclusion of the pre-emption suit, in which no reference whatever was made to the fact that an injunction had been asked for or had been granted. In M.P. No. 2561 the appellant moved the Court to postpone the disposal of the petition for a final decree until after the pre-emption suit had been decided. The Court passed an order: 'I think it is only fair to allow this petition. Allowed on petitioner furnishing security for mesne profits for two years for Rs. 200;' and the order finally accepting the security and allowing the petition was passed on 20th October 1913, on which date what has been referred, to as the order of dismissal on the execution petition now under disposal was also passed. The order of dismissal is in the following terms: 'Security is furnished on the petition of the counter-petitioner in M.P. No. 2561/13. Petition is dismissed.' There are two alternative interpretations of the word 'dismissed' in that order already referred to. With considerable hesitation we do not see our way to adopt the literal interpretation. We are led to read the order on the petition as ore merely suspending the proceedings pending termination of the pre-emption litigation with reference to tie facts; first, that the injunction, as is alleged in the affidavit already referred to that affidavit not being granted, next that the order itself was passed in connection with the order on Petition No. 2561, which petition clearly contemplated a temporary suspension pending the disposal of the pre-emption suit, and last that the amount already paid into the Court as the redemption money was not withdrawn, as the affidavit in the lower Appellate Court has been retained in Court throughout, consistently with the pendency of proceedings for the completion of the redemption, which had in no way been effected. Taking this view, we are constrained to hold that the application of 18th February 1918 was merely to revive the application of 18th August 1913 which was pending throughout and that the present proceedings are accordingly in time.

4. The lower Appellate Court's order must, therefore, be confirmed on this ground, the appeal against the Appellate order being dismissed. There will be no order as to costs.


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