CHINNAPPAN Vs. BASTIAN KUNJU

JUDGEMENT

(1.) THE defendant in O. S. No. 336 of 1976 on the file of the Court of the Munsiff, Neyyattinkara is the appellant in the Second Appeal.

(2.) THE plaintiff filed a suit for redemption. THE trial court passed a preliminary decree, but it was not in the form, in which it has to be passed under Order XXXIV R. 7, C. P. C. THE matter was taken up in appeal to the First Additional District Court, Trivandrum and the appellate court modified the preliminary decree and made it in conformity with Order XXXIV R. 7. THE appellate court fixed the period of 3 months from the date of the decree for deposit of the mortgage amount. THE decree was passed on 9-8-1981. Even before the passing of the preliminary decree, a portion of the mortgage amount had been deposited. THE balance was not deposited within. the period. However, the plaintiff filed an application I. A. No. 3016 of 1981, praying to condone the delay in depositing the balance amount and to extend the time originally fixed. It is not disputed that the balance amount was deposited on 5-1-1982. THEre was also an application for passing a final decree. THE learned Munsiff condoned the delay and passed a final decree. THE defendant challenged the final judgment. THE lower appellate court observed that since modified decree was passed by the appellate court, the application for condonation of delay and extension of time should have been presented to that court, but that will not preclude the court of first instance from passing the final decree

(3.) SRI. Sukumaran Nayar, learned counsel for the appellant pointed out that those decisions are based on Proviso to R. 8, as then stood, and therefore those decisions have no application to a case governed by sub-rule (2) of R. 7 of Order XXXIV, C. P. C. as it stood now. But it has to be noticed that the final decree has to be passed by the Court of first instance and the view taken in those decisions that it is the Court of first instance which has got jurisdiction to extend the time is fully justified by the scheme of the provisions contained in Order XXXIV, C. P. C.