SAMBHUNATH AUDDY Vs. TARAK NATH AUDDY

JUDGEMENT

(1.) This is an appeal against an order passed by Ray, J. on May 19, 1964 whereby the learned Judge has dismissed an application made by the plaintiff appellant for amongst others the following reliefs:

(2.) The short facts in this case are as follows: One Anandalal Auddy was the owner of premises Nos. 30, 32, 34 and 36 Ramdhan Mitra Lane in the city of Calcutta. On the 13th August, 1934 he created an equitable mortgage in respect of his properties in favour of one of his sons, Tarak Nath Auddy, the respondent No. 1 in his appeal. On the 11th December, 1937 the said Anandalal Auddy executed a deed of trust under which he appointed his wife Padmabati Dassi as trustee. The properties were divided into five lots. Padmabati was to enjoy the income for life and after her death the trust was to come to an end and to each of the said lots the five sons including Tarak and Sambhu was to get one lot absolutely. The trust was made subject to payment of the mortgage in favour of Tarak. On the 1st October, 1941 Anandalal died. Some time in 1946, Tarak filed a suit against Padmabati for enforcement of his mortgage being Suit No. 598 of 1946 (Tarak Nath Auddy v. Padmabati Dassi). In that suit, a final decree for sale of the mortgage property was made on the 20th September 1948. On the 11th October, 1948 Padmabati died. Thereupon, the trust came to an end and each of the five sons became owner of his respective lot. Sambhunath became the owner of No. 30B Ramdhan Mitra Lane, while Tarak became the owner of 34 Ramdhan Mitra Lane. Sambhunath thereupon offered to redeem his lot on payment of a proportionate share of the mortgage debt on the ground that the mortgagor, having become a part owner of the mortgaged property the integrity of the mortgage had been broken. It is stated, however, that Tarak refused to accept payment. He, on the o0tr hand, made an application for execution of the final decree in the said mortgage suit. On the 30th August, 1955 Sambhunath filed a redemption suit against Tarak claiming to redeem premises No. 30B, Ramdhan Mitra Lane, upon payment of a proportionate share of the mortgage debt. This was numbered as Suit No. 2477 of 1955 (Sambhunath Auddy v. Tarak Nath Auddy and others). On the 31st August, 1955 Sambhunath made an application in Suit No.2477 of 1955 for stay of the execution of the decree in Suit No. 598 of 1946. What happened was that Tarak had applied for execution by sale of the said premises No. 30B Ramdhan Mitra Lane. On the 28th November, 1955 P.B. Mukharji, J. made an order that the reference for sale in Suit No. 598 of 1946 be proceeded with but the report of the Registrar of this Court therein will not be confirmed till the disposal of the Suit No. 2477 of 1955. The learned Judge gave certain directions as to the hearing of the suit. As there was no stay of sale in execution of the mortgage decree, premises No. 30B Ramdhan Mitra Lane was sold by the Registrar and was purchased by Tarak on the 5th January, 1957. On the 20th May, 1957 a decree was passed in Suit No. 2477 of 1955. It was declared that Sambhunath was entitled to redeem the mortgage in respect of premises No. 30B Ramdhan Mitra Lane. The decree inter alia provided as follows:-

(3.) Assuming that the appellant has got the right to apply for execution of the decree in spite of the conveyance of his right, title and interest in the property in favour of his wife, the next point is as to whether he is entitled to ask for extension of time for payment of the money. Upon this point, Mr. Mukherjee appearing on behalf of the respondent No. 1 has argued that by the decree dated 20th May, 1957 the appellant was called upon to pay into Court the amount due within two weeks of the date of the countersignature by the Court of the report of the Registrar, which event took place on the 8th January, 1963 or upon such date as may be extended by the Court. He argues that the appellant did not pay within two weeks and did not ask for any extension of the time for over a year, and the default clause operated and Tarak had asked for confirmation of sale and is entitled to an order of confirmation. In fact, on the same date after dismissing the appellant's application for extension of time of pay and other reliefs, the learned Judge dealt with the application of Tarak for confirmation of sale and has made an order confirming the sale in Suit No. 598 of 1946. Against that order also an appeal is pending which is next in our list for disposal. He argues that after the time to pay has expired and the default clause had operated, no further extension of time can be granted and the order for confirmation of sale was rightly made and the prayer for extension of time to pay in Suit No. 2477 of 1955 has been rightly rejected.