Gurusami Naidu vs Govindappa Naidu and Others

Sundram Chetty, J.—This Revision Petition has been filed by the 3rd defendant against the order of the District Munsif of Ranipet in C.M.P.

No. 605 of 1931 in O.S. No. 12 of 1920 extending the time for payment of a sum of money which according to the terms of the decree was to be

paid by plaintiffs within 6 months before recovering possession of the suit properties from the defendants. The District Munsif construed the decree

to be one substantially in the nature of a redemption decree, and in the exercise of his discretion under Sub-rule (2) of Rule 7 of Order 34, Civil

Procedure Code, granted an extension of time. The amount has also been paid into Court. The correctness of this order is questioned in this Civil

Revision Petition.

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 ILR (1919) 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.

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:

The plaintiffs will therefore recover the suit properties from 3rd defendant on paying Rs. 2,814-9-11. Six months'' time is granted for payment of

the money. The properties will be a charge for the money till then. I pass a decree accordingly.

Against this decree, there was an appeal to the first appellate Court, and the matter went up to the High Court which ended in plaintiffs'' favour

on 12th January, 1931. The present petition for extension of time for the payment was put in subsequently and granted by the District Munsif.

The point for consideration is, what is the nature of the decree in question. A decree for redemption can ordinarily be passed in a suit in which a

mortgage is involved as the subject-matter. Unless there is a mortgage lien on the property (or a charge thereon for which the same remedy has to

be sought), a decree directing the payment of money by one party to another cannot strictly be termed a redemption decree. In the present case,

there is no insurmountable difficulty in regarding the decree as one in the nature of a redemption decree, as the amount which the plaintiffs were

directed to pay was for a mortgage or mortgages held to be binding on them. The effect of the decree is, that without redeeming the mortgage by

payment of the declared amount, possession cannot be recovered by the plaintiffs. It is, however, contended by Mr. Rajah Aiyar that the suit was

not a suit for redemption, and the decree in such a suit cannot be called a redemption decree. I am unable to agree with this contention. If a

mortgagor sues for recovery of possession, alleging that the mortgage debt has been fully discharged, and frames the suit as one in ejectment, but

the Court finds that some amount is still due under the mortgage and the plaintiff cannot recover possession without discharging the debt, can it not

pass a conditional decree, and is not such a decree virtually a redemption decree? The decree is in my opinion one for redemption, though the

frame of the suit is not akin to a suit for redemption of the mortgage. If authority is needed for this, the decision of a Bench of two learned Judges

of this High Court (Sundara Aiyar and Sadasiva Aiyar, JJ.) supports this view vide Ranganatha Pillai v. Paripurnam (1912) 16 I.C. 217.

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 ILR

(1919) 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 ILR (1919) 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 ILR (1920) 42 All. 639 and Nand Kunwar v. Sujan Singh ILR (1920) 43 All. 25. The decision in Idumba Parayan v. Pethi Reddi ILR

(1919) 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 ILR (1912) 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 ILR (1920) 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.

If the effect of non-payment of the amount within the time fixed is also specified in the decree by means of a penalty clause such as, ""the suit will

stand dismissed"" or the plaintiff is debarred from redeeming, there may be room for some doubt as to whether the Court can still extend the time or

should only allow the decree to work itself out. Even in such a case, the Allahabad High Court went the length of holding that the Court could

extend the time vide Het Singh v. Tika Ram ILR (1912) 34 All. 388. In the present case no penalty clause of that kind is found in the decree, and

there is nothing in the decree itself to fetter the hands of the Court in the matter of extending the time for payment. In my view, the extension of the

time granted by the Lower Court in this case was not without jurisdiction. I would affirm that order and dismiss this petition with costs.

Pleader''s fee is fixed at Rs. 100.

Pakenham Walsh, J.,

I agree.