Walluvanad Vallabha Valia Rajah Avergal vs Mankata Kovilakath Vedapuratti alias Valia Rani Avergal

H. Collins Kt., C.J.—The question referred to a Full Bench by Shephard and Best, JJ., is "" whether after the time mentioned in the decree

and before any order for sale, the mortgagor is precluded from redeeming the property?"" The decree in question directs that, upon the plaintiff (the

mortgagor) paying a certain sum into Court on or before a certain day, the defendants (the mortgagees) ""shall deliver up the mortgaged property to

the plaintiff and, that, if such payment be not made on or before the said date, the said property be sold."" The money was not paid within the time

limited, but it was paid into Court after that date, and the property was put in possession of the plaintiff under the decree. The mortgage refused to

receive the money and applied for restoration of the property on the ground that it was no longer open to the plaintiff, after the expiration of the

time limited, to apply for execution of the decree. The District Judge ruled in favour of the mortgagee on the autuhority of I. L. R. 13 M. 267

I am of opinion that the District Judge was right and that the decision reported in I. L. R. 13 M. 267 is good law. The Judges in that case,

Muthusawmy Aiyer and Parker, J.J. held that the application by the mortgagor for permission to pay after the expiration of the period fixed in the

decree does not fall under the proviso of Section 93 of the Transfer of Property Act. There was no application by the mortgagee for foreclosing

the right of redemption. Sections 92 and 93, Transfer of Property Act, must be read together and the proviso of the latter section has no

application when the mortgagee does not apply for a foreclosure, or when the original decree does not contain the last clause mentioned in Section

The case reported in I. L. E. 15 M. 366 is not in conflict with I.L.R., 13 M. 267. In I. L.R., 15 M. 366 the Jenmi of land in Malabar sued in

1886 to redeem a kanom of 1849 and obtained a decree which merely directed the surrender of the land to the plaintiff on payment of a certain

sum within 3 months from date of decree. The decree remained unexecuted, the money not having been paid. The Jenmi brought another suit to

redeem the same kanom and the Court held that the suit was not barred ''by the former decree. The question was referred owing to the

observations of Mr. Justice Muthusawmy Aiyer in I.L.R., 16 M. 214 but it is to be observed that although both Judges (Muthusawmy Aiyer and

Best, JJ.) were of opinion that the order appealed against could not be supported, they differed in their reasons, Mr. Justice Best, holding that, as

the defendants, the mortgagees, had accepted the amount: tendered by the plaintiff, the defendants must be held to have waived their right to

object to the same as paid out of time. Mr-Justice Muthusawmy Aiyer apparently overlooked the decision in I. L. E., 13 M, 267 and, in his

judgment, observed that the mortgagee never having obtained an order for sale u/s 93 of the Transfer of Property Act, the mortgagor''s right of

redemption became extinct, and the necessity for the sale was obviated by payment before any order was made u/s 93. I do not think that was the

question the learned Judge had to decide. The point in dispute was, had the plaintiff, who had made, default in payment of the money within the

time fixed by the decree a right to apply for execution of that decree after the time limited, and I am clearly of opinion that he had no such right in

execution. The cases cited in the Calcutta Reports do not appear to me to have a material bearing on the point in question, and the Bombay

decisions appear to sun-port the decision in I.L.R., 13 M. 267. I answer the question referred in the affirmative so far as it relates to the execution

of the decree. It appears to me that the terms of the reference are somewhat too wide as the defendant''s only contention in the case was that it

was not open to plaintiff, after the time limited, to apply for execution of the decree, and that question I have decided in favour of the defendant.

Parker J.

The question referred to the Full Bench is whe-ther, after the expiration of the time mentioned in the decree and before any order for sale, the

mortgagor is precluded from redeem-ing the property.

In the case which gave rise to the reference the decree directed that, upon the mortgagor (plaintiff) paying a certain sum into Court on, or

before, a certain day defendant should deliver up the mortgaged property to plaintiff, and that if such payment were not made on or before the said

date the property be sold. The money was not paid within the time limited, but it was paid on a later date and the Court put plaintiff into

possession. The mortgagee refused to receive the money and applied for restoration on the ground that it was no longer open to plaintiff, after the

expiration of the time limited, to apply for execution of the decree. The District Judge decided in defendant''s favour on the strength of the ruling in

I. L. R., 13 M. 267. The learned Judges who made this reference to the Full Bench consider that this ruling is in conflict with the cases reported in

I. L. R., 15 M, 366 and 16 M, 214 and also refer to I. L. R., 21 C. 824 which later decisions, they state, they would prefer to follow.

The cases marginally (1)Elayadalth v. Krishna ILR 13 M. 267; (2) Manavikaraman v. Unniappan ILR 15 M. 170;(3) Ramunni v. Brahma

Daltan ILR 15 M. 366; (4) Kanarakurp v. Govindakurup ILR 16 M. 214;(5) Ramamsami v. Sami ILR 17 M. 96; (6) Poresh nath Mojmdar v.

Ramjadu Mojundar ILR 16 C. 246; (7) Ajudhia Pershad v. Baldeo Singh ILR 21 C. 818; (8) Mahant Ishwargar v. Chudasama manabheri ILR

13 B. 106; (9) Patloji v. Gamu ILR 15 70 noted were referred to in the argument It will be observed that both the Calcutta cases were suits by the

mortgagee whereas all the Madras and Bombay Cases were--like the present--suits by the mortgagor. It does not appear to me that the Calcutta

cases have any application. The first, I. L. R., 16 C. 246 was a foreclosure action in which plaintiff got possession without taking the proceedings

prescribed by Section 87 of the Transfer of Property Act. It was held that as he had not done so it was open to the mortgagor (defendant) to

redeem. In the second case, I. L. R. 21 C, 818 it was held that an application by plaintiff (mortgagee) for sale u/s 89 did not require to be in the

form prescribed in S, 235--Code of Civil Procedure--and was of the nature of an application for a decree absolute.

The Bombay cases are in accord with I. L.R., 13 M, 367 and I. L. R., 15 M. 170 In the former I. L. R., 13 B. 106 it was held that the Court in

execution could not extend the time fixed by the decree, and in the latter I. L. R., 15 B. 370 that the time ran from the date of the original decree.

In the latter case the decree directed that, if the money be not paid within the time limited, the plaintiff (mortgagor) should be for ever foreclosed.

Passing to the Madras cases it does not appear to me that the decision in I. L. R., 15 M, 366 is in conflict with I. L. R, 13 267. The former case

I. L. R., 15 M, 366 was one of a second suit for redemption by the plaintiff (mortgagor). The first suit had remained unexecuted since plaintiff had

not the paid money within the time limited. The decree contained no declaration as to foreclosure or (1) Elayadath v. Krishna I. L. R., 13 M. 267;

(2) Manavikraman v. Unniappan I. L. R., 15 M. 170; (3) Ramunni v. Brahma Daltan I. L. R., 15 M, 366; (4) Kanarakurup v. Govindakurup I. L.

R., 16M. 214; (5) Ramasami v. Samil. L. R., 17 M. 96; (6) Poresh Nath Mojumdar v. Ramjadu Mojumdar I. L. R., 16 0. 246; (7) Ajudhia

Pershad v. Baldeo Singh I. L. R., 21 G. 818; (8) Mahant Ishwar-gar v, Chudasama Manabheri I. L. R., 13 B.106; (9) Patloji v. Gamu I. L. R,,

15 70 sale. It was held that though the first decree should not be execut-ed, the relation of mortgagor and mortgagee still continued to subsist until

it was terminated either by foreclosure or sale, and hence that a second suit for redemption would lie. This decision is not inconsistent with I. L. R.,

13 M, 267, which simply held that a decree could not be executed after expiration of the time limited, or with I. L.R., 17 M, 96 where it was held

that No. second suit would lie since the first decree directed that, if the money be not paid within the time limited, redemption should be barred.

It is, however, difficult to reconcile the decision in I. L. R. 16 M. 214 with the earlier decisions. In that case the mortgagor (plaintiff) obtained a

decree for redemption on the 16th March 1889 by which, six months time was given for the payment of the sum fixed. The Appellate Court simply

confirmed the original decree in June 1890, but the Appellate decree gave no extension of time for the payment of the money, notwithstanding that

an application for further time had been made by the plaintiff in an execution petition put in, in February 1890. This petition had, however, been

presented after the time fixed by the original decree had expired. The Sub-Judge executed the decree on the ground that the plaintiff''s right to relief

could only be extinguished by an order u/s 93 of the Transfer of Property Act. It seems to me that the order of the Sub-Judge to execute the

decree after it was at an end was wrong, Seel. L. R., 13 M, 267; I. L. R. 13 B 106; I. L. R., 15 B. 370 On a Letters Patent Appeal being pre-

ferred the learned Judges upheld the action of the Sub-Judge in, executing the decree, but on different grounds. Mr. Justice Best was of opinion

that as defendants had accepted the money they must be held to have waived their right to object to the same as paid out of time; while Mr. Justice

Muthusawmy Aiyar held that as the mortgagee never obtained any order for sale, and as the money was paid before the equity of redemption was

extinct, the'' order of the Sub-Judge was right.

In the case which gave rise to the present reference the mortgagee has refused to accept the money and therefore cannot be said to have waived

his right. The special ground on which Mr. Justice Best based his decision does not apply here. With regard to Mr. Justice Muthusamy Iyer''s

judgment, I can only say, with great deference, that I think the learned Judge overlooked the decisions in I. L. E., 13 M. 267 and I. L. R. 15 M.

170 and mistook the real question that was before him. In all the remarks that he makes as to the scheme of the Transfer of Property Act I entirely

agree. I also agree that the mortgagor can redeem at any time before the right of redemption becomes extinct, either under the Transfer of

Property. Act or by the Law of Limitation. But the question under consideration was one of procedure, not of substantive law, and though the

plaintiff could bring a second suit for redemption (provided such a suit be not barred) or might pay the money into Court, if defendant applied for

sale, I do not see how this right to do either of these things can affect the Law of Limitation and enable him to execute a redemption decree after

the expiration of the time limited.

The right of applying for sale, after the time limited, is the right of the defendant (mortgagee) and if he does not choose to exercise that right he

cannot be compelled to do so. He may prefer to remain in possession, and may consider that he could not find a better investment for his capital if

he were paid off. He may (it is true) be compelled to accept payment if the mortgagor pays the money into Court within the time limited, or

succeeds--after the expiration of that time--in a second redemption suit. But if he prefers to retain the property he need not apply for sale and he

may possibly hope that the right of redemption will become barred before the mortgagor is in a position to sue again.

I find it impossible to reply to the question referred to the Full Bench by a simple affirmative, or negative. If by the question is intended--"" Is the

mortgagor precluded from executing the decree?"" I would answer in the affirmative; but if the question be :--""Is he precluded from redeeming the

property?"" the answer seems to be that it all depends upon the circumstances of the case. Provided the mortgagor''s right of redemption be not

extinct, he can bring a fresh suit, or he can redeem if the mortgagee applies for sale, but he cannot himself apply for execution of the decree after

the expiration of the time limited. I would reply to the referring Bench accordingly. In the case under reference it seems to me that the decision of

the District Judge was right.

Shephard, J.

The question raised by this reference is stated in terms larger than the actual case requires. The precise question should have been whether,

under the circumstances mentioned, the mortgagor is precluded from redeeming the property under the decree. This question, however, almost

necessarily involves the larger question, what remedy is open to the mortgagor after the expiration of the time limited by the decree for the payment

of the mortgage money? That the right of the mortgagor still remains notwithstanding the expiration of the time fixed, there can be no doubt.

Whether the decree be made in a suit by the mortgagee or in the mortgagor''s suit for redemption, whether the decree contains a direction for sale

or a direction for foreclosure, it is equally open to the mortgagor to come in on an application being made by the mortgagee, either under the 87th

or 93rd section and pay the mortgage-money into Court. The 93rd Section contains an express provision indicating that the right of redemption is

extinguished only upon the passing of an order absolute for foreclosure or a similar order for sale under the provisions of the same Section. And

even after such latter order has been passed, there still remains to the mortgagor the right which,under the provisions of the Civil Procedure Code,

every Judgment-debtor has to prevent the sale by paying the money into Court. While it is thus clear that the mortgagor, when put on the defensive

by a hostile application made on the mortgagee''s behalf has the means of making good his right of redemption at any time before the actual sale

takes place, it has to be seen in what manner he can assert his right against a mortgagee who remains quiescent and makes no application for an

order absolute. The 93rd Section of the Act, which is supplementary to the preceding section and has to be read with it says :--"" If payment is

made of such amount and of such subsequent costs as are mentioned in Section 94, the plaintiff shall, if necessary, be put into possession of the

mortgaged property."" A like provision is contained in the 87th and in the 89th section except that in the latter''s payment "" on the day fixed as

aforesaid"" is presupposed. Although the language of the other two Sections is not so precise, I think it is evidently intended that in all three cases

alike, the payment is to be made on the day fixed. That being so, the mortgagor having lost the opportunity of recovering possession under the first

paragraph of the 93rd section must, unless the proviso can be called in aid, assert his right of redemption otherwise than under the decree. The

proviso in the 93rd Section authorising the Court upon good cause shown to postpone the day fixed for payment is similar to that in the 87th

Section but curiously in the 89th Section which is the Section declaring the course to be taken in the case of a decree for sale there is no such

proviso. It is quite clear, as was pointed out in I. L. R. 13 Madras 268 that the proviso cannot be intended to operate except in cases where the

decree for redemption contains a clause ""similar to that prescribed by the last paragraph of the 92nd Section. Reading the 87th Section and the

93rd Section together, I also think that the proviso was only intended to come into play when an application has been made by the mortgagee for

the final order to which he may be entitled. That seems to have been the opinion of the learned Judges who heard the appeal reported in I. L. R,

13 M. 268 (See also Ishwarya v. Chudasama) ILR 13 B. 109 The point did not arise for decision, because the decree under consideration

stopped short with the order for payment of the mortgage money within three months and contained no order for sale on default. In the two cases

where it was held that the mortgagor could proceed under the decree even after the lapse of the six months the judgments are not founded on the

proviso enabling the Court to give time. In the Madras case I. L. R. 16 M. 218 Mr. Justice Muthusawmy Iyer dwells on the circumstance that the

mortgagor''s right of redemption is not lost until the actual sale takes place. The learned Judge says the real question is :--"" Whether on the

expiration of six months the right of redemption becomes extinct under Act 4 of 1882?"" With great deference I must say that I do not think that

was the real question which he had to decide. What he had to determine was whether the mortgagor, not having applied within the six months, was

entitled to an order for the delivery of the mortgaged property on payment of the mortgage-money. Undoubtedly the mortgagor had not lost the

right of redemption, but it did not follow that he was entitled to make it good by an application for execution of the decree. The possibility of a

second suit for redemption being brought does not seem to have been noticed. In the Calcutta case I. L. R. 16 C. 246 the decree had been made

in a foreclosure suit and, although after the expiration of the six months no order absolute was made under the 87th Section the mortgagee

obtained an order and under it got possession. The mortgagor subsequently brought the money into Court and applied for redemption of the

property. In this case again, as it appears to me the right of redemption was clearly not lost to the mortgagor. The court, proceeding partly on the

English cases, held that the mortgagor''s application ought to be allowed. A lucid statement of the English practice in a foreclosure suit is given by

the late master of the Rolls in Compbell v. Holyland (7 Ch. Div. Alden v. Foster) 5 Beav. p. 262 According to that practice the court has a

discretion to enlarge the time for payment. This may be done either on the independent motion of the mortgagor, or on the hearing of an application

to make the foreclosure absolute. Even after the foreclosure is made absolute, it is only in point of form that the order is final, for the Court still has

a discretion to treat the parties as a mortgagor and mortgagee. The practice prescribed by the Act so far follows the English practice that in a

foreclosure or redemption suit there is first an interim order fixing a time for payment, and secondly a final order for foreclosure absolute. Until this

latter is passed under the 87th or 93rd Section as the case may be, I do not think the mortgagor''s right of redemption is lost but except in the

provision already mentioned, I do not find any thing in the Act to justify the notion that the English practice, as to enlarging the time for payment,

was intended to be followed. In that practice a wide distinction is made between foreclosure suit and redemption suits, application for enlargement

being rarely granted in the latter case : See Faulkner v. Bolton 7 Sim p. 39 where, in default of payment, the Vice-Chancellor refused to allow the

plaintiff to redeem and dismissed the bill. No sign of such a distinction is to be found in the Act. It appears to me that if the Legislature had intended

that the mortgagor should be allowed to come in after the day fixed and apply on his own motion for enlargement of the time, they would have

recognised this distinction and framed some rule for the guidance of the court. It is only reasonable to hold that the mortgagor, if seeking to take

advantage of the decree, should be kept strictly to its terms, and that, on the other hand, the mortgagee should not, perhaps many months after the

passing of the fixed day, be called upon without notice to find a fresh investment for his money. This view of the law is supported by the series of

cases in which it has been held in this Court that a mortgagor not having executed the decree obtained by him in a redemption suit is at liberty to

bring a second suit for redemption; for if these cases are good law the mortgagor cannot complain that he is without a remedy. According to those

cases, I. L. R. 6 M. 119 I. L. R. 7 M. 423; I. L. R, 8 M. 478; I. L. E. 15 M. 368 and I. L. R, 16 M. 97 the mortgagor who has let pass the time

for executing his decree is in much the same position as a mortgagor in England whose suit has been dismissed for want of prosecution. The

principle involved in them derives a qualified support from the observation of the judicial Committee in I. L. R. 10 B. 465 where the case in I.L.R 7

M. 423 was cited in argument. It seems to me that it is too late for us to question those cases. It was pointed out that in them the decrees under

consideration contained no direction for sale or foreclosure, but, in my opinion, the addition of such a direction, inasmuch as it does not by itself

extinguish the right of redemption, makes no difference. Apart from these cases I should, for the reasons already stated, arrive at the same

conclusion as to the rights of a mortgagor under his decree. If the mortgagor is left in this position that he can neither proceed upon the decree, nor

institute another suit, he is after all in no worse position than a mortgagor in England whose suit for redemption has been dismissed for other

reasons than want of prosecution. If he is in possession, his rights are fully protected under the provisions of the Act. If the possession is with the

mortgagee, the mortgagor has only himself to blame if he has not been careful to conform to the terms of the decree for which he himself asked.

Where the decree has been made in a foreclosure suit as in I. L. R. 16 C. 246. it must be admitted that there may be more hardship. On that case

however, it is not necessary to give an opinion. For the reasons stated, I think that the question whether the mortgagor is, after the fixed day in the

decree for redemption, precluded from taking action under bis decree must be answered in the affirmative.