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Murugesa Mudaly and ors. Vs. Ramasawmi Chetty - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Judge
Reported in31Ind.Cas.200
AppellantMurugesa Mudaly and ors.
RespondentRamasawmi Chetty
Cases ReferredSee Mulla Veetil Seethi Kutti v. Kurambath Parutlhooli Achuthan Nair
Excerpt:
civil procedure code (act v of 1008), order xxxiv, rules 3, 8 - extension of time fixed for payment of mortgage-money, grant of--mortgagor, if entitled to redeem as of right after time fixed--order made without jurisdiction--revision. - .....the reasons given by the plaintiff in the suit foi non-payment of the mortgage-money within the time fixed were insufficient and unsatisfactory, but all the same he gave the extension prayed for, on the ground that the plaintiff was entitled as a matter of right to redeem until there is a decree for foreclosure absolute, even though the time fixed by the decree nisi had passed.2. the power to extend the time for payment of the mortgage-money is now regulated by order xxxiv, rules sand 8, and under these rules the court can only extend the time upon good cause shown. this is in accordance with the settled practice in england. even in cases where the mortgagee sues for foreclosure extension of time for payment is not given as a matter of course, and the mortgagor is not entitled to.....
Judgment:

Srinivasa Aiyangar, J.

1. This is an application to revise the order of the District Munsif of Dharmapuri extending the time fixed for payment of the mortgage-money by a decree nisi in a suit for redemption by a puisne mortgagee. The Munsif thinks that the reasons given by the plaintiff in the suit foi non-payment of the mortgage-money within the time fixed were insufficient and unsatisfactory, but all the same he gave the extension prayed for, on the ground that the plaintiff was entitled as a matter of right to redeem until there is a decree for foreclosure absolute, even though the time fixed by the decree nisi had passed.

2. The power to extend the time for payment of the mortgage-money is now regulated by Order XXXIV, Rules Sand 8, and under these rules the Court can only extend the time upon good cause shown. This is in accordance with the settled practice in England. Even in cases where the mortgagee sues for foreclosure extension of time for payment is not given as a matter of course, and the mortgagor is not entitled to redeem as of right after the time fixed for payment although no order for foreclosure absolute has been passed see Faulkner v. Bolton 7 Sim. 319 : 40 R.R. 155, Nanny v. Edwards 4 Russ. 6 L.J. Ch. 20 : 28 R.R. 24, In re Parbola, Ltd., Blackburn v. Parbola Ltd. (1909) 2 Ch. 437, Seton on Judgments page 1913 and Fisher on Mortgages, Section 1958]; and in suits by a mortgagor to redeem, the time for payment is not extended except in cases of accident or mistake See Novosvelski v. Wakefield 7 Ves. 417 and Collinson v. Jeffery (1896) 1 Ch. 644 : 74 L.T. 78. Inasmuch as the lower Court extended the time for payment when it had no power to do so, this Court has power to interfere with the order in revision as one passed without jurisdiction; but I do not think that the justice of the case requires that I should interfere with the order. The suit was instituted by the puisne mortgagee against the first mortgagee who bad also purchased the equity of redemption. The puisne mortgagee, it is now settled, would be entitled to institute a suit for the sale of the property subject to the first mortgage. See Mulla Veetil Seethi Kutti v. Kurambath Parutlhooli Achuthan Nair 9 Ind. Cas. 513 : 9 M.L.T. 431. But at the time when the suit was instituted, there was some ddubt on the point and the puisne mortgagee seems to have instituted the suit for the redemption of the first mortgage and for sale of the whole of the mortgaged properties for the sums due on both the mortgages. At any rate that was the decree passed. The sum which the plaintiff had to deposit on account of the 1st mortgage was nearly Rs. 2,000, and he made the deposit within a month after the date fixed and he paid also interest on that sum at 12 per cent. The amount due to him was nearly Rs. 1,161; and it is reasonable to suppose that the mortgaged property was worth considerably more than the amount due on the 1st mortgage. The 1st mortgagee suffers no hardship; while on the other hand, if I interfere with the order, the puisne mortgagee would lose the whole of the amount due to him.

3. I, therefore, dismiss this petition, but under the circumstances without costs.


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