Dharmaraja Ayyar and Another vs K.G. Srinivasa Mudaliar and Four Another

Sadasiva Ayyar, J.—There is a preliminary objection taken that no appeal lies against the order of the lower Court extending the time for

payment of the mortgage-amount, an order passed under the proviso be Order XXXIV, Rule 8, and u/s 148 of the Civil Procedure Code; (as

regards that portion of the order of the lower Court which effected an addition of parties under Order XXII, Rules 10 and 11, we were told chat

this appeal wag not directed against that portion.

We think that the preliminary objection is sound. The order extending time does not come within the definition of a decree (see Section 2,

Clause (2) of the Civil Procedure Code). We are clear that it does not determine any question coming within Section 47 as was ingeniously

contended by the appellant''s learned vakil Mr. S. Varadachariyar.

We, however, allow this appeal to be converted into a revision petition u/s 115, Civil Procedure Code.

The question for consideration on this footing will be whether an Appellate Court which passed the preliminary decree in a mortgage-suit (which

was treated as a combined suit for redemption as regards a prior mortgagee and for sale as regards the mortgagor) has jurisdiction to entertain an

application for extension of time under Order XXXIV, Rule 8, proviso and Section 148.

As regards Section 143, we concur with the decisions in Het Singh v. Tika Ram (1912) 9 A.L.J. 381 and Suranjan Singh v. Rama Bahal Lal

(1912) 17 I.C. 912 that that section does not apply to the extension of time for doing act allowed by decrees.

As regards Order XXXIV, Rule 8, we agree with Venkatakrishna Ayyar v. Thiagaraya Chetti ILR (1900) Mad. 521, Sheonarain v. Chunni Lal

(1911) 13 C.L.J. 459, Ram Dhani Sahu v. Lalit Singh ILR (1909) All. 328 and Shamuldhun Dutt v. Lahhimani Debi (1911) 13 C.L.J. 459, that it

is the Court of First Instance to which the suit was remitted after the preliminary decree was passed by the Appellate Court which has the exclusive

jurisdiction to deal with an application under Order XXXIV, Rule 8, proviso. Section 37 quoted by the respondents'' learned vakil has no

relevancy as Order XXXIV, Rule 8, proviso, does not contain the expression ""Court which passed a decree"" or ""words to that effect"" but only the

one word ""Court"" occurring in that expression. But it is argued that the word ""Court"" meant from the context in the former portions of that Rule 8,

only the ""Court which"" (actually) ""passed the decree"" even if that Court be the Appellate Court. But even if the word ""Court"" has that meaning in

the former portions, we do not see that the single word ""Court"" constitutes the expression ""Court which passed a decree"" or ""words to that effect

when that single word is not followed by any words corresponding to the words. ""which passed a decree."" The said words ""Court"" in the Clauses

(1), (2) and (4) of that Rule 8 which relates to the passing of final decrees in mortgage suits would no doubt mean the same thing as the expression

Court which passed a decree"" when the Court which passed the preliminary decree was (as it would ordinarily be) the Court of First Instance.

But to argue therefore that the word must mean in all cases ""the Court which passed the decree"" even if that Court was the Appellate Court and

not the Court of First Instance and that therefore the word ""Court"" in the proviso also means only the Appellate Court if that is the-Court which

passed the decree and does not include the Court of First Instance except by a reference to Section 37 seems merely to beg the question in issue.

Further Section 37 includes the Court of First Instance only where proceedings have to be taken ""in relation to the execution of decrees"" in certain

contingencies. The application now in question does not, in the first place, relate to the execution of any decree and, in the second place the

decree-holder seeks, not to include the Court of First Instance on the strength of Section 37 but to either include or to mean only the Appellate

Court.

In the result, we allow the revision petition and direct the. Sub-Court to return the petition so far as it prays for an extension of time, to be

presented to the Court of First Instance. Costs hitherto will abide. A fair copy of the petition might be attached to the original petition (which is

really a combination of two separate petitions); when the latter is represented to the Court of First Instance, the words ""may be pleased to add

them as plaintiffs Nos. 3, 4 and 5"" being omitted from the fair copy so. attached.