Idumba Parayan and Others vs Pethi Reddi and Others

The application for execution arose out of a partition decree. Some of the members of the family sued their co-parceners for partition and

sought to set aside certain alienations in favour of strangers. The decree gave the plaintiffs their share : The Court found, that the alienation

impeached was binding upon the members of the family to the extent of about Rs. 800 and odd and directed that the plaintiffs do obtain possession

of the property in the possession of the alienees after paying a sum of Rs. 400 and odd. in terms and in effect, this portion of the decree was one

for redemption. The final decree does not however say that in case the money is not paid within the time fixed viz., 10-7-1916 the suit for

possession of the property shall stand dismissed. Nor does it say that the right to recover possession on subsequent payment is barred to the

plaintiffs. The plaintiffs did not pay the amount within the time stipulated. They subsequently applied for possession of the property after paying into

Court the amount which was ordered to be paid. The Courts below have held that as the money was not paid within the time fixed the plaintiffs are

not entitled to any further extension of time, and that they are not entitled to recover possession of the property.

In the first instance on payment of the money by the plaintiffs, they were put in possession. On an application made by the alienees to cancel that

order for possession on the ground that the money was not paid in time, the District Munsif reversed his own order and ordered the plaintiffs to

restore possession to the alienees. That order has been confirmed by the lower appellate Court. It is against it that this Civil Miscellaneous Appeal

has been presented.

In our opinion, the application for extension of time ought to have been granted by the District Munsif. He quotes a large number of authorities

beginning with Ratna-swami Kone v. Sundara Kone ILR 31 Mad. 28 and says that he has no power to extend the time. What these decisions

have laid down is that by the mere fact of confirmation of the decree by the appellate Court, further time is not ipso facto given for payment of the

money. They are not authorities for the position that the Munsif has no jurisdiction to extend time. Under Order 34 Rule 8 last clause, the Court

may upon good cause shown and upon such terms as it thinks fit, from time to time postpone the day fixed for payment. In Het Singh v. Tika Ram

ILR 34 All. 388 where the decree directed that if money was not paid within a particular time, the suit should stand dismissed, the learned Judges

held that as there was no bar to redemption, time should be extended and that the decree did not work itself out. If we turn to the earlier portion of

Order 34 Rule 8, it is clear that until the defendant obtains an order debarring plaintiff from seeking redemption, the right to apply for further

extension of time is not lost,. In the picturesque language of Kekewich, J., in Coilinson v. Jefferey (1896) 1 Ch. 644 by the lapse of time fixed for

payment, the action is not dead but is in a comotose condition; it will become dead only when an order is obtained under Order 34 Rule 8

debarring plaintiff from redeeming. Till then it is alive and is capable of being revised. Under the last sentence of Order 34 Rule 8, courts have

power to extend time for payment. We are therefore of opinion that the lower courts had jurisdiction and were not precluded, by the fact that the

money was not paid within the time limited from extending the period for payment-There is one decision of this Court which on the face of it

appears to be conclusive of the arguments advanced by the learned vakil for the appellants. In Moidin Kuppa v. Punnuswami Pillai (1914) 1 L.W.

882 reference was made to Sections 148 and 151 of the CPC and it was pointed out that these sections have no bearing in regard to applications

for extension of time under mortgage decree. We are not in a position to ascertain what the exact language of the decretal order was in that case. It

may be that the order directed that if the money was not paid within the time limited, the right of redemption would become barred. If that had

been specifically mentioned in the decree no further application by the defendant to bar the right of redemption need have been made. The decree

would have worked itself out and would have prevented the Court from exercising its powers under the last clause of Order 34 Rule 8. As we are

not in a position to ascertain the facts on which that decision proceeded we do not regard it as conclusive of the present question.

We have made these observations because the decree appears to be one for redemption. Having regard to the language of the decree and also

in view of the charge which the defendants obtained for a portion of the money which was held binding on the family, the decree in this case must

be construed as above indicated. In that view, we hold, following Collinson v. Jefferey (1896) 1 Ch. 644 and Het Singh v. Tika Ram ILR (1912)

All. 388 that it was competent to the District Munsif to extend the time and that there was no good cause for his reversing his original order. We

must set aside the orders of both the lower Courts and dismiss the petition for redelivery of the property made by the defendants. As the mistake

has been largely due to the laches of the plaintiffs we do not think that they are entitled to any costs. Each party will bear his own costs. The Civil

Revision Petition is dismissed. No costs.