KRISHNAN NAMBIAR Vs. MADHAVAN NAIR

JUDGEMENT

(1.) The short question in this second appeal by the plaintiff, is whether the courts below were right in holding that the suit herein, for redemption of Ext. B2 mortgage of 1887 was not maintainable on the ground that the right to redeem had been extinguished by order of court within the meaning of the proviso to S.60 of the Transfer of Property Act and so proceeding to dismiss the suit in limine.

(2.) The order of court whereby the right to redeem was alleged to be extinguished, was contained in Ext. B1 prior decree for redemption of the selfsame mortgage, passed on 10-6-1913 at the instance of the original mortgagor against the original mortgagee, the parties to this suit being only assignees respectively from them. It was to the effect that if the mortgage amount and value of improvements due to the mortgagee were not paid on or before 10-9-1913 (i. e.) within three months of the date of the decree, the plaintiff shall be debarred from all rights to redeem the properties. Admittedly no amount was paid as directed and the contention was raised and now been accepted by the courts below that on account of the failure to pay as per the order, the consequence mentioned in the order that the plaintiff shall lose his right to redeem followed inevitably.

(3.) Now the provision in Ext. B1 decree as aforesaid was modelled on the last paragraph of S.92 (since repealed by the Civil Procedure Code, 1908) the relevant portion of which ran as follows:-