Bhola Nath Bhattacharjea vs Kanti Chandra Bhattacharjea

Maclean, C.J.—This is a suit to enforce a mortgage security. On the 8th September 1893, the usual preliminary mortgage decree was made, giving the Defendant three months'' time within which to redeem, the three month''s to run from the date of that decree. On the 24th of July 1894, an appeal by the Defendant against that decree was heard and dismissed, thus leaving the decree untouched. On the 30th of July 1894, an application was made by the Plaintiff for foreclosure absolute, and notice of that application was served on the 8th of August of the same year on the mortgagor, the present Appellant. On the 15th September in the same year, the foreclosure was made absolute. No objection was then made by the Defendant. It appears that the Court was satisfied that notice had been served upon him; this appears upon the face of the order of the 15th September 1894. On the 16th November 1894, possession was given to the Plaintiff by the Court and on the 8th of April 1895 satisfaction was entered up by the Court, which, practically, terminated the suit. Some time in April 1895, the Defendant made an application to the Munsif to set aside his own foreclosure order absolute of the 15th September 1894, and the ground for his application was, that the three months given for payment, under the decree of the 8th September 1893, ran not from the date of that decree, but from the date of the Appellate Court''s decree, of the 24th July 1894. The Munsif acceded to that view and set aside his own order. An appeal was taken to the District Judge, who reversed the order of the Munsif. Hence the appeal to us. To my mind, it is not necessary for us to go with the question of whether the three months for redemption ran from the date of the original decree, or from the date of the appellate decree. In my judgment, if the Defendant desired to raise that point, the proper time to raise it was when the matter came before the Munsif upon the application by the Plaintiff for foreclosure absolute. He ought then to have raised it, he ought then to have invited the Court to hold that the three months for payment ought to run from the 24th of July 1894, and not from the 8th September 1893, and that as that period had not expired, the foreclosure ought not to be made absolute. He did nothing of the sort. To my mind, it is too late for him to raise the question now. I have been at a loss to appreciate, and I invited the learned vakil for the Appellant to assist me upon what ground, or perhaps, I should say, upon the exercise of what jurisdiction the Munsif had the power to discharge the order of the 15th September 1894, having regard to the circumstances under which that order was made. Upon that point, the learned vakil has not been able to afford me any assistance. In my opinion, the Munsif had no such power. In this view of the case, it becomes unnecessary, as I said before, to discuss the question as to the period from which three months for payment commenced to run, though it is not to be inferred from my silence that I do not concur with the view, upon that point of the Court below.

There is one other fact to which I ought to refer, namely, that there was an application by the present Appellant to the Munsif to review the order of the 15th September 1894. That application was unsuccessful.

I think the Court below was quite right, and the appeal must be dismissed, with costs. We fix the hearing fee at two gold mohurs.

Banerjee, J.

I am of the same opinion. I only wish to add that if it were necessary to go into the question raised, namely, whether the time for redemption should run from the date of the first Court''s decree, or from the date of the decree in appeal, I should not have felt much hesitation in answering it in favour of the Respondent, saying that the time should run, having regard to the terms of the decree in the Appellate Court, from the date of the decree of the first Court. No doubt, as there was an appeal here, the final decree in the case is the decree of the Appellate Court. But the decree of the Appellate Court simply dismisses the appeal, leaving the decree of the first Court untouched; and I find very great difficulty in understanding how it can be said that, although the decree of the first Court, which is thus left untouched, provided that, if payment was not made within three months from the date thereof, the mortgage should be foreclosed, the mortgagor, by simply pre. furring an unsuccessful appeal, and without obtaining any order from the Appellate Court to that effect, gets necessarily, by the mere fact of the appeal, an extension of time, namely, three months from the date of the Appellate Court''s decree.

Great reliance was placed upon the decision of this Court in the case of Noor Ali Chowdhuri v. Koni Meah ILR 13 Cal. 13 as showing that the time in such cases should run from the decree of the Appellate Court, notwithstanding that the decree merely confirms the first Court''s decree. But the case just referred to depended upon the construction of sec. 52 of Act VIII (B.C.) of 1869. That section enacts that "in all cases of such suits for the ejectment of a ryot or the cancelment of a lease, the decree shall specify the amount of the arrear, and if such amount, together with interest and cost of suit, be paid into Court within 15 days from the date of the decree, execution shall be stayed." The provision for stay of execution upon payment of arrears forms no part of the decree; it is a provision contained in the Rent Law; that law enacts that if payment is made within 15 days from the date of the decree, execution should be stayed; and the Court held that the date of the decree there meant the date of the final decree in the case. That may be so; but there is no reason why a decree for foreclosure should be taken subject to any similar limitation. Here the time has to be fixed by the decree itself. The first Court''s decree fixed a certain time, namely, three months from the date thereof. The decree of the Appellate Court left that decree untouched, and merely dismissed the appeal. There is no reason then for saying that the mere fact of the appeal being preferred has the effect of extending the time for redemption. Another case was relied upon, namely, the case of Daulat and Jagjivan v. Bhukan Das Manckchand I. L. R, 11 Bom, 172, but there the learned Judges based their decision upon what they presumed to have been the intention of the decree of the Appellate Court. There being no indication here in the Appellate Court''s decree of any intention to alter or extend the time fixed by the first Court, and there being nothing in secs. 86 and 87 of the Transfer of Properly Act, which governs this case, to show that the time allowed is other than that expressly and definitely fixed by the Court, I do not see any reason for holding that the time in this case runs from any date other than that of the decree of the first Court, The law makes ample provision for preventing hardship. The Court which makes the decree is authorized by sec. 87 of the Act, to enlarge the time upon good cause being shewn. Here, as has been pointed out in the judgment of the learned Chief Justice, far from any good cause being shewn, no cause whatever was shewn, nor even was any application made, for extension of time, before the decree absolute was made. I therefore think the order appealed against is quite right, and should be confirmed with costs.