HIRAI Vs. D J GORAKHPUR

JUDGEMENT

(1.) This writ petition was dismissed in default on 19.09.2006. Thereafter, restoration application was filed by the petitioners on 12.12.2006. On 18.05.2011, arguments of learned counsel for the petitioners were heard on the restoration application as well as on the merit of the writ petition. On the said date no one had appeared on behalf of contesting respondents. Thereafter, the matter was directed to be put up on 23.05.2011 on which date also no one appeared on behalf of contesting respondents. Restoration application was allowed on the said date and further arguments of learned counsel for the petitioners on the merit of the writ petition were heard and judgment was reserved.

(2.) Sri Dhanraj, husband of original petitioner No.1 and father of original petitioner No.2, and Haribansh Misra father of respondents No.3 & 4 instituted O.S. No.694 of 1949 against Smt. Munakka Devi, predecessor-in-interest of the original petitioners who have also died and substituted by their legal representatives. The relief claimed in the suit was for redemption of usufructuary mortgage dated 26.09.1919. The suit was decreed on 13.08.1951 and plaintiff was directed to deposit Rs.2314/- which were deposited on 13.02.1952. The defendant in the suit Smt. Munakka Devi filed appeal against judgment and decree passed by the trial court. The appeal was allowed. Against the said judgment and decree, plaintiff Haribansh Mishra filed Second Appeal No.2323 of 1953 in this High Court. The second appeal was allowed on 01.05.1964. The judgment and decree passed by the lower appellate court was set aside and judgment and decree passed by the trial court was restored with the modification that plaintiff was directed to deposit 12% per year interest also. For 16 years plaintiff did not comply with the condition of the deposit of the interest. On 16.01.1980 plaintiff filed application for preparation of preliminary decree. The application was rejected by Additional Munsif, Gorakhpur on 07.04.1981 holding that the judgment and decree passed by the High Court was itself a preliminary decree. Order dated 07.04.1981 was maintained in revision which was dismissed by First Additional District Judge, Gorakhpur on 05.04.1982.

(3.) Thereafter plaintiff filed an application on 19.05.1982 before the trial court seeking condonation of delay in depositing the amount of interest as directed by the High Court through its judgment and decree of 1964. The said application was filed under Sections 148 & 151 and Order XXXIV Rule 7(2), C.P.C. The specific prayer was that plaintiff might be permitted to deposit amount of interest (12% interest as directed by the High Court to be deposited). The application was registered as Misc. Case No.117 of 1982, Narbadeshwar Misra and others Vs. Smt. Hirai and others. Munsif First Gorakhpur allowed the said application (4-ga) on 04.07.1983 and permitted the plaintiff to deposit the amount of interest. The ground of condonation of delay taken by the plaintiff was that after decision of the High Court in the second appeal the file was consigned to record room and plaintiff had no knowledge of the same. The defendants placed reliance upon an authority of Patna High Court reported in Mohd. Azim Vs. Mohd. Sultan, 1946 AIR(Pat) 99holding that in respect of decree of usufructuary mortgage, provisions of Order XXXIV Rule 7 C.P.C. were not applicable. However learned Munsif placing reliance upon Narsingh Prasad Singh and Ors. v. Partap Singh and Ors., 1928 AIR(All) 480 held that time could be extended in the matter of depositing mortgage money. For the sufficiency of ground of condonation of delay, trial court held that earlier the plaintiff had filed application for preparation of final decree, hence appropriate ground of condonation of delay had been made out. In this regard, the trial court did not keep in mind that application for preparation of preliminary decree was itself filed after 16 years, i.e. on 16.01.1980. The trial court did not say anything regarding the delay from 01.05.1964 when second appeal was allowed till 16.01.1980 when application for preparation of preliminary decree was filed.