Indian Kanoon - Search engine for Indian Law

2. It is urged that the Lower Court is wrong in construing the decree as in the nature of a redemption decree, and that it had no jurisdiction to extend the time fixed in the decree for payment. It is further argued by Mr. Rajah Aiyar for the petitioner that the soundness of the decision in Idumba Parayan v. Pethi Reddi (1919) I.L.R. 43 Mad. 357 : 37 M.L.J. 695 on which the order of the Lower Court rests is open to doubt, and that decision requires reconsideration.

3. Before discussing this point, let me state briefly the facts of this case. The plaintiffs (as reversioners) filed O.S. No. 12 of 1920in the District Munsif's Court, Ranipet, for a declaration of their reversionary right and of the invalidity of a mortgage and sale effected by the widow (1st defendant). During the pendency of the suit, the widow died, and the plaintiffs appear to have got the plaint amended, by the addition of a prayer for recovery of possession of the suit properties free from all in-cumbrances created by the widow. After a due inquiry the Court seems to have found that a portion of the mortgage debt was valid and binding on the reversioners (plaintiffs) and consequently they could not recover possession unconditionally. It looks as if the Court thought, that without paying a certain sum of money to the extent of redeeming the mortgages binding on plaintiffs, they should not recover possession. The decretal portion of the judgment is worded thus:

6. If the decree passed can be reasonably treated as a decree directing the redemption of a mortgage, and if for that purpose it fixes a period of time for payment of the money, there is, in my opinion, no bar to the exercise of the discretionary power for extending such time, as provided in Sub-rule (2) of Rule 7 of Order 34, Civil Procedure Code. The decision of a Bench of this High Court in I dumb a Parayan v. Pethi Reddi (1919) I.L.R. 43 Mad. 357 : 37 M.L.J. 695 is distinctly in favour of the plaintiffs' contention. In that case, a decree for recovery of possession of certain properties from the alienees, on payment of a sum of money by a certain date, was passed, without any provision as to the consequence of non-payment. Such a decree was passed in a suit for partition. It was not a suit for redemption of a mortgage, nor does it appear that the amount which the plaintiffs were directed to pay was for redeeming any mortgage. Still, it was held, that the decree was in terms and in effect one for redemption, so that the Court would have jurisdiction to extend the time for payment under Order 34, Rule 7. For the purposes of the present case, it is not necessary to go so far as the learned Judges went in Idumba Parayan v. Pethi Reddi (1919) I.L.R. 43 Mad. 357 : 37 M.L.J. 695. Where the payment of the amount within a certain time fixed as a condition for the recovery; of the property, is one in respect of a mortgage, by way of redemption, (as in the present case), I fail to see why the Court is not competent to extend the time under the aforesaid rule. There may be some force in the appellant's contention, if the liability for the payment of the amount imposed on the plaintiff does not arise out of a mortgage or has no connection at all with a mortgage. Our attention is drawn to two decisions of the Allahabad High Court, viz., Kandhaiya Singh v. Musammat Kundan (1920) I.L.R. 42 All. 639 and Nand Kunwar v. Sujan Singh (1920) I.L.R. 43 All. 25. The decision in Idumba Parayan v. Pethi Reddi (1919) I.L.R. 43 Mad. 357 : 37 M.L.J. 695 has been dissented from. The learned Judges of the Allahabad High Court seem to hold that the Court would have no jurisdiction to extend the time for payment under Order 34, Civil Procedure Code, unless the suit was expressly one for redemption of a mortgage, and the decree is also a redemption decree. This view is opposed to the decision of our High Court in Ranganatha Pillai v. Paripurnam (1912) 16 I.C. 217, already referred to. In an earlier case of the Allahabad High Court in Kalian v. Sadho Lal (1912) I.L.R. 35 All. 116 a compound decree in plaintiffs' favour was passed, which was a decree for redemption coupled with a decree for sale, but the suit was not in form a suit for redemption. It was however held that the Court had jurisdiction to extend the time fixed in the decree for redemption under Order 34, Civil Procedure Code. This decision seems to have been approved in Nand Kunwar v. Sujan Singh (1920) I.L.R. 43 All. 25. With respect, I should think, it would be too strict an interpretation of Rule 7 of Order 34, Civil Procedure Code, to hold that the power to extend the time vested in the Court cannot be exercised even if the decree is virtually one for redemption of a mortgage, unless the suit also is strictly in the form of a redemption suit.