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isof Ali and ors. Vs. Kasim Ali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in70Ind.Cas.152
Appellantisof Ali and ors.
RespondentKasim Ali
Cases Referred and Alimea Chowdkuri v. Roshun Ali Matbar
Excerpt:
civil procedure code(act v of 1908), order xxxiv, rule 3, clause (2) - mortgage by conditional sale--suit for foreclosure--mortgagor's right to redeem before passing of final decree. - .....to be issued on that day on the defendants fixing he 1st may 1918 as the date for passing the final decree. before the final decree was passed, the defendants-mortgagors on the 15th april made an application to the court to pay off the decretal amount and also asked for in extension of time for the money to be paid. on the 1st may 1918 the court held that the defendant could not get the permission to deposit and that the time for payment could not be enlarged unless the defendants proved their allegations in the petition and accordingly passed the final decree in the suit that decree was affirmed on appeal by he learned district judge, and the defendants have appealed to this court.3. we think that the defendants were entitled to redeem at any time before the final decree was.....
Judgment:

1. This appeal arises out of a suit for foreclosure pi a mortgage by conditional sale.

2. A preliminary decree for foreclosure was passed on the 5th October 1917 and six months time was allowed, i.e. up to the 5th April 1918 Before the date fixed for payment the mortgagor sold the property to one Lakhi Charan Sana on the 19th March 1918. It is said that this Lakhi Charan attempted to deposit the decretal amount but that it was refused. On the 9th April 1918 the decree-holder applied to make the decree in the foreclosure suit final and notice were ordered to be issued on that day on the defendants fixing he 1st May 1918 as the date for passing the final decree. Before the final decree was passed, the defendants-mortgagors on the 15th April made an application to the Court to pay off the decretal amount and also asked for in extension of time for the money to be paid. On the 1st May 1918 the Court held that the defendant could not get the permission to deposit and that the time for Payment could not be enlarged unless the defendants proved their allegations in the petition and accordingly passed the final decree in the suit That decree was affirmed on appeal by he learned District Judge, and the defendants have appealed to this Court.

3. We think that the defendants were entitled to redeem at any time before the final decree was passed. As stated above, although 5th April 1918 was fixed for payment under the preliminary decree, the right of the mortgagors to redeem was not extinguished until the final decree was passed. No doubt, if the mortgagtors wanted an extension of time fixed for payment, it would have teen necessary for them to show good cause for such extension. Where, as in the present case, no withstanding the expiry of the time allowed by the preliminary decree for payment, the final decree had not been passed we think that the mortgagors had a right to redeem before the passing of the final decree. See Poresh Nath Mojumdar v. Ramjodu Mojumdar 16 C. 246 : 8 Ind. Dec. (N.S.) 162 and Alimea Chowdkuri v. Roshun Ali Matbar 3 C.L.J. 533. The order under Order XXXIV, Rule 3, Clause (2) was not made until the 1st May, and the defendants wanted to deposit the decretal amount on the 15th April. The final decree was not drawn up and signed till the 8th May 1918.

4. In these circumstances, we direct that the case be sent back to the Court of first instance in order that the defendants may deposit the amount due under the decree including all the costs incurred by the (sic) in the Court of first instance, within one month of the arrival of the order in that Court, and upon that being done, the final decree for foreclosure will be set aside with costs of this Court and to the lower Appellate Court.

5. If the money is not deposited within the time specified, this appeal will stand dismissed with cost.


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