Allahabad High Court
Het Singh And Ors. vs Tika Ram on 1 March, 1912
Equivalent citations: 14IND. CAS.240
JUDGMENT
1. One Khnshal Singh mortgaged the property in suit to Bhagwant Singh on the 19th of November 1889. He again mortgaged it to Tika Ram on the 2nd of January 1894. Bhagwant Singh brought a suit on his mortgage without impleading Tika Ram and got a decree on the 23rd of June 1900, in execution of which he bought the property on the 15th of August 1904. Tika Ram, on the 7th of February 1910, got a decree to redeem the mortgage of Bhagwant Singh on payment of Rs. 462 with interest. The decree was in general terms and did not set out the amount of interest which Tika Ram had to pay. It provided that if Tika Ram failed to pay up to the 15th of August 1904, his suit was to be dismissed. The date is presumably wrong. The 15 h of August 1910 was the date fixed. The date of the mortgage in favour of Bhagwant Singh is also wrongly shown as November 1890, instead of the 19fch of November 1889. On the 2nd of August 1310, Tika Ram paidinto the Court Rs. 2,278 calculating interest from Novembar 1890. The sum was less than the full amount due on the mortgage if calculated from the 19th of November 18S9. The judgment-debtors, taking advantage of the mistake, applied, on the 21st of November 1910, that Tika Ram's claim be dismissed on the ground of the provision in the decree and that costs be awarded to the applicants.
2. The Court of first instance acting under Section 148, Civil Procedure Code, enlarged the time for payment up to the 15th of February 1911 and rejected the application.
3. In appeal two points were considered,-
(1) Could the time for the payment of the money due on the mortgage of Bhagwant Singh be extended under Section 148, Civil Procedure Code? (2) Was good cause shown for extending the time?
4. The lower Appellate Court found that the time for the payment of money under a mortgage-decree could be extended under Section 148, Civil Procedure Code, and that good cause was shown for the extension. On the above findings, the lower Appellate Court upheld the order of the first Court.
5. In second appeal, it is urged that Section 148, Civil Procedure Code, has no application: that an executing Court has no power to extend the time fixed by the mortgage-decree for the payment of a prior mortgage, and that no good cause was shown for the extension of the time for the payment. We are of opinion that Section 148, Civil Procedure Code, applies to cases in which is extended the time fixed by the Code of Civil Procedure for the doing of some act and not to the extending of the time fixed by a mortgage-decree for the payment of a prior mortgage.
6. In the decree in a redemption suit "the Court may, under Order XXXIV, Rule 8, upon good cause shown and upon such terms, if any, as it thinks fit, from time to time, postpone the day fixed for payment," The learned Vakil for the appellants concedes this but urges that time can be extended when the decree in a redemption suit is drawn up in the form prescribed by law, but that if it provides that in case of failure to pay within the period fixed by the decree the suit shall stand dismissal, no extension can be granted in contravention of the provision in the decree. We are unable to accept the contention, The decree in the case before us was a decree in a redemption, suit and the provision therein that in ca.33 of failure to pay the plaintiff's suit shall stand dismissed, was carelessly put in for the provision that the plaintiff shall be debarred from all right to redeem the mortgaged property inasmuch as the suit was for redemption and the dismissal of such a suit had the effect of debarring the plaintiff from all right to redeem.
7. We are satisfied that Tika Ram, in calculating the interest from November 1890, made a bona fide mistake which constituted a good cause for the extension of the time for the payment of the prior mortgage of the 19rh of November 1889 We, therefore, uphold the decree of the lower Appellate Court but not for the reasons set out by that Court in its judgment. The result is that we dismiss the appeal with costs which in this Court will include fees on the higher scale.