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Sm. Soudamini Das Vs. Nabalak Mia Bhuiya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1931Cal578
AppellantSm. Soudamini Das
RespondentNabalak Mia Bhuiya and ors.
Cases ReferredBrojolal Rai Chowdhury v. Tara Prosanna Bhattacharji
Excerpt:
- .....the plaintiff should have appealed from the original decree and not from the amended decree. the learned judge seems to be of opinion that the plaintiff not having appealed from the original decree which allowed the defendants the right to redeem was not entitled to challenge that portion of the decree in appeal against the order of 30th april 1928. he has for this view refused to accede to the further prayer of the appellant, namely, to extend the time for appealing, under section 5, lim. act. in my judgment the learned district judge has not taken the correct view of the matter. i considered a similar question and gave my view fully upon this point in the case of aditya kumar bhattacharjee v. abinash chandra mukhopadhya a.i.r. 1931cal. 323. it was held by my learned brother costello,.....
Judgment:

Suhrawardy, J.

1. In this appeal the question is as to whether the lower appellate Court should have heard the appellant's appeal on the merits. The suit was brought by the appellant upon a mortgage bond. It was decreed by the learned Munsif on 22nd June 1927 with the reservation that defendants 2, 3, and 6 would be allowed to redeem their share by paying Rs. 265-4-0 to the mortgagee. Ten months after, an application was made by the defendants questioning the amount which they were ordered to pay for redemption and on this application the amount was reduced to Rs. 77-6-0 on 30th April 1928. The plaintiff-appellant before us preferred an appeal to the lower appellate Court within thirty days from 30th April 1928 questioning the decree so far as it allowed the defendants to redeem but she did not appeal against the decree of the learned Munsif dated 22nd June, 1927. The learned District Judge has held that the appeal was out of time as the plaintiff should have appealed from the original decree and not from the amended decree. The learned Judge seems to be of opinion that the plaintiff not having appealed from the original decree which allowed the defendants the right to redeem was not entitled to challenge that portion of the decree in appeal against the order of 30th April 1928. He has for this view refused to accede to the further prayer of the appellant, namely, to extend the time for appealing, under Section 5, Lim. Act. In my judgment the learned District Judge has not taken the correct view of the matter. I considered a similar question and gave my view fully upon this point in the case of Aditya Kumar Bhattacharjee v. Abinash Chandra Mukhopadhya A.I.R. 1931Cal. 323. It was held by my learned brother Costello, J. and myself that if a decree is amended either by way of review or under Section 206 (Section 152, of the present Code) the decree to be appealed against is the amended decree and no appeal should therefore lie from the original decree.

2. It is argued on behalf of the learned advocate for the respondents that in the appeal before the lower appellate Court the only question which could be raised on behalf of the appellant was with regard to the amount which the defendants were asked to deposit in order to redeem and not with regard to the correctness of the decree of the trial Court giving the right of redemption to the defendants. This contention should not prevail. Even if the original decree of the trial Court, dated 22nd June 1927, was wrong the plaintiff was not bound to challenge it because by that decree she got adequate consideration for the mortgage; but when the amount was subsequently reduced she had reasons to believe that the reduced amount was not sufficient to meet her claim and she was entitled to question the entire decree allowing the defendants to redeem the mortgage partially. The reported cases on this point are numerous. Reference may be made to the cases of Amar Chand Kundu v. Asad Ali Khan [1905] 32 Cal. 908, Brojo Lal Rai Chowdhury v. Tara Prosanna Bhattaaharji [1907] 3 C.L.J. 188 and Joy Kishen Mookerji v. Ataoor Rohoman [1881] 6 Cal. 22. I need not dilate upon this point because I. have already expressed my view in the case referred to above.

3. It further seems to me that this is a proper case in which extension of time should have been allowed to the appellant under Section 5, Lim. Act, as the circumstances made out sufficient cause within the meaning of that section.

4. In the circumstances it would be unnecessary to send the case back to the lower appellate Court for the rehearing of the appeal. The only point for which it is to be remanded for consideration before the learned District Judge in the lower appellate Court is as to whether the decree of the trial Court allowing partial redemption to some of the defendants is legally correct. It was agreed by both parties plaintiff and defendants before the learned District Judge that there could be no order like the one passed by the learned Munsif for partial redemption, the proper remedy being a suit for contribution by some of the defendants after depositing the entire decretal amount. That being so, we do not think it necessary to remand the case to the lower appellate Court.

5. The result therefore is that the decree of the trial Court reserving the right of defendants 2, 3 and 6 to redeem their share of the mortgaged property is modified by giving them along with the other defendants the right of redeeming by paying the entire decretal amount. With this modification the decree of the trial Court is maintained. The decree of the lower appellate Court is set aside and this appeal is allowed with costs in this Court as well as in the Court below. Let a fresh decree be drawn up in accordance with the judgment of this Court.

Jack, J.

6. I agree, but I would base my judgment merely on the ground that this is case in which time should be extended under Section 5, Lim. Act, following the decision in the ease of Brojolal Rai Chowdhury v. Tara Prosanna Bhattacharji [1907] 3 C.L.J. 188


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