Document Fragment View

Matching Fragments

3. On behalf of the respondent it is urged that the case is governed by the ruling of this Court in Kalian v. Sadho Lal (1912) I.L.R. 85 All. 116, that virtually the direction for the payment of Rs. 3,005-9-9 was a redemption decree and that Order XXXIV, Rule 8, therefore, applied and the lower court had jurisdiction to extend the time. Our attention has also been called to the decision of the Madras High Court in Idumba Parayan v. Pethi Reddi (1912) I.L.R. 85 All. 116. So far as the case of Kalian v. Sadho Lal (1912) I.L.R. 85 All. 116, is concerned, it is not on all fours with the present case. That was a suit in which there were subsisting prior mortgages and the prior mortgagees were made parties to the suit and the puisne mortgagee offered to redeem. He also sought to recover his own money and asked for the sale of the property to recover the total amounts due on all the mortgages. His prayer was allowed. He was given time within which to redeem the prior mortgages, and this Court held that Order XXXIV, Rule 8, certainly applied to that portion of the decree. The decision in our opinion was correct, for it was partly a decree for redemption to which the order quoted clearly applied. With the decision 4 of the Madras case we, with all respect, find ourselves unable to agree. That was a case where a co-sharer sued for partition and sued also to recover his share in a bit of the family estate which had been alienated by other members of the family, which alienation the court found to be binding to the extent of Rs. 800. The court allowed him to obtain possession of the property conditional on his paying his share, Rs. 400, of the money. The learned Judges who decided the case treated that decree as a redemption decree and applied Order XXXIV, Rule 8. Order XXXIV, Rule 8, with the proviso attached to it, applies only to redemption decrees. There is a similar provision to be found in Order XXXIV, Rule 3, which relates to suits for foreclosure. No such provision is to be found in relation to simple decrees for sale. In the present case the present appellant Musammat Nand Kunwar was not a prior mortgagee, and no order could have been passed that in case of default of payment by the plaintiff of the sum of Rs. 3,005 odd the present appellant should have power to put the property to sale to recover that amount. The decree was merely an equitable decree passed in the circumstances of the case. The prior mortgage no longer existed. It had merged into the decree and that decree had been executed and satisfied. The decree passed by the first court ordering payment of part of the money to the representatives of the prior mortgagee was set aside by this Court and the whole amount was made payable to the representatives of the auction purchaser. No redemption decree could have been passed in this case, nor was any redemption decree passed, and the only result, according to the decree, of the plaintiff's failure to put the money into court was that she was not able to put the property to sale. This was tantamount to a dismissal of her suit in default of payment, for without payment it was impossible for her to recover any money by sale of the property. There was no personal decree. In our opinion Order XXXIV, Rule 8, can apply only, as the law says it shall apply, to redemption suits, The present was no redemption suit, and in our opinion the court below had no jurisdiction to extend the time. The order of the court in the decree directing payment of the money within a specified time has not been obeyed and the result followed as laid down in the decree. The respondent, therefore, was not entitled to a final decree for sale Incidentally we call the attention of the court below to the following words in the proviso to Order XXXIV, Rule 8, "upon good cause shown." As far as we are able to discover, no cause whatever, good, bad or indifferent, was shown. The court appears to hive acted in a purely arbitrary manner without assigning any reasons. The result, therefore, is that we allow the appeal and set aside the decree of the court below. The application for a final decree will stand dismissed with costs in both courts.