Ratnakar Gountia vs Chamra Satpasty

Sir Thomas Fredrick Dawson Miller, Kt., C.J.—This is an appeal from an order of the Subordinate Judge of Sambalpur, dated the 19th February 1918, dismissing an application for an extension of the time for redeeming a mortgage in a foreclosure suit by three of the defendants in that suit, who were interested in the property as mortgagors. The plaintiffs in the suit were second mortgagees of the property in question, and, before they instituted their suit the first mortgagees had obtained a mortgage decree. The plaintiffs, therefore, made the second mortgagees as well as the mortgagors the defendants in the present suit. The first mortgagees are the defendants Nos. 18 and 19, the other defendants are the mortgagors or others interested claiming through them. The defendants who have brought the present appeal are the defendants Nos. 11 to 13 in the suit. The suit was decreed in favour of the plaintiffs on the 1st May 1914 and an order was made that the plaintiffs should be at liberty to redeem the prior mortgagees, the defendants Nos. 18 and 19, and that the other defendants including the present appellants, as mortgagors, should within six months from the date when the prior mortgagees were redeemed by the plaintiffs pay off to the plaintiffs the decretal amount, including the sum which they had paid to the prior mortgagees, within six months from the date of payment; otherwise foreclosure was ordered.

It appears that an appeal was lodged against that decision and came up to the High Court, and by consent of the parties the case was remanded by the High Court to the Subordinate Judge with directions to ascertain the improvements which it was claimed by the prior mortgagees, who had been in possession, that they had made to the property, because this sum apparently had not been ascertained and they could not be redeemed until the sum was ascertained. It was directed that the amount found due to the prior mortgagees for improvements should be added to the redemption money payable by the plaintiffs. The matter went back then to the Subordinate Judge and the amount for improvements was ascertained and assessed at a sum of Rs. 1,100. It is obvious from what I have said that the original decree having been modified, it was necessary that a further decree in the case should be passed. In the meantime, on the 18th November 1916, the defendants by an order of the Subordinate Judge of that date were allowed six months in which to redeem the plaintiffs from the date when the plaintiffs redeemed the defendants Nos. 18 and 19, and failing this there was to be a foreclosure. At that time the amount of the improvements had not been ascertained, but they subsequently were ascertained, and on the 15th May 1917, a preliminary decree was passed whereby it was ordered that the plaintiffs should pay into Court a sum of Rs. 1,100 to the account of the defendants Nos. 18 and 19 within two months (that would bring the date up to the 15th July 1917), and that the other defendants, including the present appellants, should pay the sum decreed in the mortgage suit, including the Rs. 1,100, to the plaintiffs within four months from that date. (That would bring it up to the 15th November 1917.) The money, in fact, was deposited by the plaintiffs within time, that is to say, on or before the 15th July 1917, and therefore, under that decree which I have just referred to of the 15th May 1917, the time allowed to the present appellants and the other defendants would expire on the 15th November. On the 22nd December 1917, neither the appellants nor the other defendants having taken any steps to redeem the plaintiffs, the matter came before the Subordinate Judge to pass the final decree, and it appears that at that time one Gokul Chandra Babu had acquired the right and title of the whole of the defendants, other than Nos. 18 and 19, in their equity of redemption, and be presented a petition for final orders in the case and for a final decree, praying in fact that foreclosure might be ordered, he not being in a position to pay off the mortgagees. It ought to be mentioned that that application was made and heard before the Subordinate Judge in the presence of all the defendants or their Pleaders who represented them and in the presence of the Nazir of the Court who was the guardian of the present appellants, who were minors. That appears from the decision of the learned Subordinate Judge in the order which is appealed from and which I shall refer to presently.

The decision come to on that occasion by the learned Subordinate Judge was that which appears in the order-sheet as Order No. 117, dated the 22nd December 1917. It says:--

Judgment debtors have not deposited the decree money. So on the petition of Gokul Chandra Babu decree is made final, and it is ordered that the judgment debtors are debarred absolutely from redeeming the mortgaged properties. Plaintiffs will be put into possession of the mortgaged properties free from all claims of the judgment-debtors.

And in pursuance of that decision a decree was drawn, which undoubtedly contains certain clerical errors. The decree, which is dated the same day and signed by the Judge, apparently on the 11th January 1918, instead of referring in the preliminary part of it to the application of Gokul Chandra Babu and instead of referring to the preliminary decree passed on the 15th May 1917 (the earlier one of the 1st May 1914 having been set aside when the case was remanded by the High Court), did in fact read in this way:--

Upon reading the decree passed in the above suit on the 1st day of May 1914 and the application of the plaintiffs dated the 1st day of December 1914 and after hearing Babu B.P. Chatterji, Vakil for the plaintiffs, and Babu J.N. Sen, Vakil for the defendants Nos. 18 and 19, and Babu R.N. Misra, for Nriparaj Gountia, and Babu Parsuram Misra, Pleader for other defendants, and it appearing that the payment directed by the said decree has not been made, it is hereby decreed as follows...............

Then follows the operative part of the decree, which debars the defendant and all persons claiming through or under him from all right to redeem the mortgaged property and ordering the plaintiffs to be put in possession.

There was no appeal from that judgment and decree, which was the final decree in the case directing foreclosure and giving possession to the plaintiffs. But the present appellants, on the 28th January 1918, filed a petition, notwithstanding that the final decree had been passed, claiming an extension of the time prescribed by the preliminary decree for redeeming the plaintiffs and getting back possession of their property, and setting out the history of this case their petition prays that it may be held that the order (the word is "order" but it is a mistake for decree), dated the 22nd December 1917, forfeiting the right of redemption and the order of the 15th May 1917 (which is the preliminary decree) are invalid and inoperative, and the applicants may be permitted to deposit the entire decretal amount and redeem the mortgaged property.

When that application came before the Subordinate Judge on the 19th February 1918, the questions which were discussed before him were questions as to the power of the Subordinate Judge in the preliminary decree of the 15th May to order, as he did, that the defendants should redeem the plaintiffs four months after they had redeemed the prior mortgagees, because under the previous order of the 18th November 1916, the plaintiffs had been allowed six months to redeem. The learned Judge, however, pointed out that in the preliminary decree he had properly interpreted the order previously made on the 18th November and he also pointed out that this order had not been set aside; and, further, it was pointed out that the final decree had been passed in the case and there had been no appeal from that. But in any case the learned Subordinate Judge came to the conclusion that the applicants in their affidavit really disclosed no case whatever for extending the time, even if the applicants were to be allowed six months from the time when the plaintiffs redeemed the prior mortgagees, and that even when that time expired they were not then in a position to pay the money into Court. Further, he pointed out that all the orders in the case and the decrees had been made in the presence of the Nazir who represented the applicants, now the appellants, and that, therefore, not having appealed from the final decree, they could not at a later date come before him and ask for an extension of time in respect to a matter which was concluded by the final decree.

From that order the appellants have appealed. It seems to us that this appeal cannot possibly stand. In the first place it is quite clear that a final decree has been made in this case and that unless it is set aside by a proper procedure, it is absolutely binding upon the applicants. It can only be set aside in one of three ways--either by an appeal to the High Court or by an application under Order IX or by an application for review of judgment, and none of these courses has been taken. The appellants, however, ask us to say that the final decree passed on the 22nd December is invalid and inoperative, and, therefore, that in fact no final decree in the case has been passed at all, and they go further and say that where no final decree has been passed notwithstanding that the preliminary decree limits the time within which they may apply to redeem, nevertheless they may still apply after the time has expired and before a final decree has been passed, and claim as a right to pay in the redemption money and avoid foreclosure. It is not necessary for us in this case to decide that last point, although some argument has been addressed to us upon it and various cases not under the present CPC but u/s 86 and the following sections of the Transfer of Property Act have been referred to. It seems to me, reading the order and rules of the CPC which relate to this matter, that it is clear that if the preliminary decree is not complied with, the mortgagors have no absolute right to pay the redemption money and avoid foreclosure merely on the ground that a final decree has not been passed. It seems to me quite clear that Order XXXIV, rule 3, by the proviso to clause (2) of that rule, contemplates that the Court may or may not, as it shall think fit, extend the time for the payment, and if it is to be held that the mortgagors have an absolute right to pay in the money after the time for payment has expired, it is difficult to see what can be the meaning of the proviso to which I have just referred. However that may be, it is not necessary, as I say, to determine this question because we have come to the conclusion without much difficulty that the final decree passed on the 22nd December 1917 is a valid decree. The first reason which has been urged before us for treating it otherwise is that there appear in the preliminary part of that decree two errors which, in our opinion, are clearly clerical errors. I have already referred to them in an earlier part of this judgment, and it is not necessary to repeat them again. It is not difficult to see how these errors may have arisen. It is probable that the decree muharrir, in making this decree, in going through the record which is one of some length and looking for the applications for a final decree and endeavoring to ascertain what was the preliminary decree, had come across the application by the plaintiffs dated the 1st December 1914, which in fact was made on the first preliminary decree dated the 1st May 1914, and then through carelessness, not realising that decree had been set aside and that a fresh preliminary decree had been made after the case was remanded and that a fresh application for a final decree had consequently been made, went no farther in his search in the record. But these are purely clerical errors, such as can be rectified by the Court which passed the decree and they do not seem to me to affect the matter in any way.

The next objection which was taken and the last is one in which I also think that there is no substance. It was contended that under the rules the application for a final decree must be made by the plaintiff and that in the present case no such application had been made, and, therefore, the decree was in itself a nullity. It is quite true that the application in this case was not made by the plaintiffs, but was made, as I have said, by Gokul Chandra Babu who was at that time standing in the shoes of the defendants, having purchased their interest. The present appellants, who were represented as I have said by the Nazir, were parties to that, in that the application was made in their presence and no objection was taken to it at that time. The plaintiffs themselves were also acquiescing parties in that application, and I do not think that the present appellants, who are the defendants, have any right, after the matter had been determined in their presence and without objection, to turn round and say that there was no jurisdiction in the Court to pass a final decree. It is unnecessary to deal with the matter further. It is quite clear to me that if the parties consent to a course which is not strictly in accordance with the procedure prescribed by the rules and take no objection to it, they are not entitled to turn round afterwards and seek to get Borne benefit from the failure to abide by the procedure in the same way as if they had objected at the start or if they had had no notice of it. In my opinion, this appeal must be dismissed with costs.

I think the final decree of the 22nd December 1917 must go to the Subordinate Judge to be corrected in conformity with the judgment. The judgment clearly refers to the petition of Gokul Chandra Babu, and the decree refers to an application of the 1st December 1914. Again, by what is obviously a clerical error, the preliminary decree is referred to as that passed on 1st May, 1914; whereas in fact it was a decree passed at a later date.

Reginald Roe, J.

I agree.