Dattatraya Vithal Garware vs Wasudeo Anant Gargate and Others

Lallubhai Shah, Kt., A.C.J.

In this case the few material facts are these. A decree was passed by the lower appellate Court on the 27th November 1917 under which the mortgagor was to pay a certain sum within six months, and in the event of his failure to pay he was to be debarred from redeeming. That time expired on the 27th May 1918. In the meanwhile the mortgagor preferred a second appeal to this Court from that decree on the 12th March 1918, which was dismissed under Order XLI, Rule 11, on the 9th July 1918. On the application of the mortgagee the decree was made absolute on the 3rd October 1918, after notice to the mortgagor. The mortgagor tendered the money payable under the decree passed on the 27th November 1917 in Court on the 23rd October 1918, and made an. application for execution of the decree claiming redemption. But his application was rejected, and his further prayer for extension of time under Order XXXIV, Rule 8, also was disallowed.

From this order of the Subordinate Judge rejecting his application he appealed to the District Court, and the learned District Judge of Satara dismissed his appeal with costs, accepting the view taken by the Court of first instance on both the points.

From that decree the applicant has appealed to this Court, and it is urged by way of preliminary objection that the appeal, so far as it relates to the prayer for extension of time under Order XXXIV, Rule 8, is not competent because the order refusing-to extend time is appealable as an order under Order XLIII, Rule 1(o), and that no further appeal is allowed from an order made in appeal. Section 104, Sub-section (2) of the Civil Procedure Code, is clear on the point. The preliminary objection seems to be good so far.

But the real point that the appellant urges in support of his appeal is that the time for payment must be taken to run from the date on which his appeal was dismissed by this Court. So far as that contention is concerned his application was an ordinary application for execution of the decree, and the second appeal would be competent. We have, therefore, heard the learned pleader in support of the appeal on this point.

The question that has been argued is whether the effect of the dismissal of the appeal preferred to this Court under Order XLI, Rule 11 is to extend the time fixed under the decree of the lower appellate Court which was passed on the 27th. November 1917. It is clear that the tender of the money under the decree on the 23rd October 1918 would be in time if the time is calculated from the date of the summary dismissal of the appeal by this Court.

No authority has been cited in support of the proposition that the time fixed under a decree appealed from is extended by such dismissal. There are decisions to the effect that where the appeal is admitted and. heard on the merits, and where ultimately the decree appealed from is confirmed., it has the effect of extending the time fixed under the decree thus confirmed in appeal, and in such a case the time would run from the date of the decree confirming it. It will be enough, to refer to the decision of this Court in Satwaji Balafirav v. Sakharlal Atmftramshet (1914) 39 Bom. 175.. Several decisions have been referred to in the judgment of the learned Chief Justice in that case, but there is not a single one in which the summary dismissal of an appeal is held to have the effect which the appellant in this case contends for. The decision in. Bhola Nath Bhuttacharjee v. Kanti Chundra Bhuttacharjee (1897) 25 Cal. 311 is against the contention of the appellant : and the observations in Bapu v. Vajir (1896) 21 Bom. 548 also go to show that the dismissal of an appeal under Order XLI, Rule 11 cannot have the effect of extending the time as argued on behalf o� the appellant. Speaking with reference to the dismissal u/s 551 of the CPC of 1882, Farran C.J. observes (p. 551):

The change of language made in 1888 in that section by the Legislature shows, we think, that it was intended that there should be a difference between the results of a dismissal under it and of a confirmation u/s 577; as, indeed, we think, there must be. Dismissing an appeal is, we think, refusing to entertain it as in the case of an appeal dismissed as being time-barred. Where an appeal is dismissed u/s 551, there is no decree of the High Court which can be executed, and the reasoning in the cases to which we have been referred docs not apply.

The rule as to the extension of time has been held to apply where the decree under which the time is fixed is confirmed in appeal. Where it is dismissed under Order XLI, Rule 11, the decree appealed from cannot be taken to have been confirmed under Rule 32. The dismissal of the appeal leaves that decree untouched.

We must, therefore, confirm the decree of the lower appellate Court and dismiss the appeal with costs.