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Dharmaraja Iyer and anr. Vs. K.G. Sreenivasa Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported inAIR1916Mad694; 31Ind.Cas.240
AppellantDharmaraja Iyer and anr.
RespondentK.G. Sreenivasa Mudaliar and ors.
Cases Referred and Shama Dhone Dutt v. Lakhimoni Debi
Excerpt:
civil procedure code (act v of 1908,), sections 2(2), 47, 148, order xxxiv, rule 8, proviso - order extending time for payment of money due under mortgage-decree, if appealable--extension of time--time limit under decree--preliminary decree by appellate court--determination of other questions--suit, remitting of--'court' in order xxxiv, rule 8 proviso, meaning of. - .....extending the time for payment of the mortgage amount, an order passed under the proviso to order xxxiv, rule 8, and under section 148 of the civil procedure code. (as regards that portion of the order of the lower court which effected an addition of parties under order xxii, rules 10 and 11, we were told that this appeal was not directed against that portion).2. we think that the preliminary objection is sound. the order extending time does not come within the definition of a decree (see section 2, clause 2, of the civil procedure code). we are clear that it does not determine any question coming within section 47, as was ingeniously contended by the appellant's learned vakil, mr. section varadachariar.3. we, however, allowed this appeal to be converted into a revision petition under.....
Judgment:

1. There is a preliminary objection taken that no appeal lies against the order of the lower Court extending the time for payment of the mortgage amount, an order passed under the proviso to Order XXXIV, Rule 8, and under Section 148 of the Civil Procedure Code. (As regards that portion of the order of the lower Court which effected an addition of parties under Order XXII, Rules 10 and 11, we were told that this appeal was not directed against that portion).

2. We think that the preliminary objection is sound. The order extending time does not come within the definition of a decree (See Section 2, Clause 2, of the Civil Procedure Code). We are clear that it does not determine any question coming within Section 47, as was ingeniously contended by the appellant's learned Vakil, Mr. Section Varadachariar.

3. We, however, allowed this appeal to be converted into a revision petition under Section 115, Civil Procedure Code.

4. The question for consideration on this footing will be whether an Appellate Court, which passed the preliminary decree in a mortgage suit (which was treated as a combined suit for redemption as regards a prior mortgagee and for sale as regards the mortgagor), has jurisdiction to entertain an application for extension of time under Order XXXIV, Rule 8, proviso, and Section 148.

5. As regards Section 148 we concur with the decisions of Het Singh v. Tika Ram 9 A.L.J. 381 : 34 A.k 388 and Suranjan Singh v. Ram Bahal Lal 17 Ind. Cas. 912 : 10 A.L.J. 520 that that section does not apply to the extension of time for doing acts allowed by decrees.

6. As regards Order XXXIV, Rule 8, we agree with the cases of Venkata Krishna Aiyar v. Thiagaraya Chetti 10 M.L.J. 145, Sheonarain v. Chunni Lal (1900) A.W.N. 209, Ram Dhani Sahu v. Lalit Singh 2 Ind. Cas. 220 : 6 A.L.J. 251 and Shama Dhone Dutt v. Lakhimoni Debi 13 C.L.J. 459 that it is the Court of first instance, to which the suit was remitted after the preliminary decree was passed by the Appellate Court, which has the exclusive jurisdiction to deal with an application under Order XXXIV, Rule 8, proviso. Section 37, quoted by the respondents' learned Vakil, has no relevancy as Order XXXIV, Rule 8, proviso, does not contain the expression Court which passed a decree' or 'words to that effect' but only the one word 'Court' occurring in that expression. But it is argued that the word 'Court' means, from the context in the former portions of that Rule 8, only the ' Court which' (actually) passed the decree' even if that Court be the Appellate Court. But even if the word Court' has that meaning in the former portions, we do not see that the single word Court' constitutes the expression Court which passed a decree' or words to that effect' when that single word is not followed by any words corresponding to the words which passed a decree.' The said word Court' in the Clauses 1, 2 and 4 of that Rule (8) which relates to the passing of final decrees in mortgage suits would, no doubt, mean the same thing as the expression Court which passed a decree,' when the Court which passed a preliminary decree was (as it would ordinarily be) the Court of first instance. But to argue, therefore, that the word must mean in all cases the Court which passed the decree' even if that Court was the Appellate Court, and not the Court, of first instance, and that, therefore, the word Court' in the proviso also means only the Appellate Court, if that is the Court which passed the decree, and does not include the Court of first instance, except by a reference to Section 37, seems merely to beg the question in issue.

7. Further, Section 37 includes the Court of first instance only where proceedings have to be taken in relation to the execution of decrees' in. certain contingencies. The application now in question does not, in the first, place, relate to the execution of any decree and in the second place, the decree-holder seeks, not to include the Court of first instance on the strength of Section 37, but to either include or to mean only the Appellate Court.

8. In the result, we allow the revision petition and direct the Sub-Court to return the petition, so far as it prays for an extension of time, to be presented to the Court of first instance. Costs hitherto will abide. A fair copy of the petition might be attached to the original petition (which is really a combination of two separate petitions) when the latter is presented to the Court of first instance, the words 'may be pleased to add them as plaintiffs Nos. 3, 4 and 5' being omitted from the fair copy attached.


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