PRAKASH CHANDRA Vs. GUMANMAL

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit for redemption of mortgage of a house situated in Nallah Bazar, Ajmer.

(2.) ONE Smt. Kesar Bai mortgaged the house in question to Ghisulal, father of defendant-respondents Nos. 1 to 4 for Rs. 1,300/-/- by a mortgage deed sometime in 1933 A. D. Kesar Bai died on 19-9-1945. It is alleged by the plaintiffs that she had executed a will in favour of her brother's son Parkash Chandra on 12-6-1943. Prakash Chandra obtained letters of administration on the basis of the will on 17-9-1957 and served a notice dated 24-5-1961 on Ghisoolal requiring the latter to give him possession of the mortgaged property on payment of the mortgage money. However, Ghisoolal did not comply with the notice and died sometime thereafter. Consequently, Parkash Chandra as well as his father Mathura Das filed the present suit on 25-5-64 in the court of the Munsiff City (West), Ajmer against the present respondents Gumanmal and others who are the sons of Ghisoolal for possession of the mortgaged property by redemption on payment of Rs. 1,300/-/- as mortgage money. It may be stated here that the plaintiff had also alleged in the plaint that Ghisoolal had transferred all his rights, title and interest in the mortgaged property in favour of one of his sons Tarachand Defendant No. 4 sometime in the year 1961 by a registered document. This fact was admitted by the defendants in their joint written statement and is no more in controversy. Even then, no objection has been raised on behalf of the defendants other than Tara Chand against their being impleaded as defendants in the case. A decree for redemption has also been passed against all the defendants, but no objection has been taken on their behalf either in the first appellate court or in this Court.

(3.) IN the case of Joseph John vs. Varkey Thomas (1) referred to above, the appellate court confirmed the trial court's decree and was silent regarding the time fixed for payment by the court of first instance and therefore the learned Judges held that the party in default is not entitled to reckon the time from the date of the appellate court's decree. That is admittedly not so in the present case. IN Ramdhani Ram vs. Sital Prasadram (2), it was held that the time fixed by the court for payment in a suit for specific performance of contract need not be extended. Admittedly, no such point arises in the present case, and, therefore, the so two cases are, in my opinion, beside the point. IN Dr. Ramkumar's case (supra) Jagat Narayan J. held, and rightly, if I say so with respect, that if the decree is confirmed by the appellate court without any variation, then the mere fact of an appeal having been preferred does not prevent its being executed, nor can it be deemed to enlarge the time for its performance. IN that case the appellate court had in fact not enlarged the time fixed by the decree of the appellate court and in these circumstances, it was held that the time of one month granted by the trial court will be reckoned from the decree of the trial court even though that decree had merged in the decree of the appellate court. Thus, it is quite clear that Dr. Ramkumar's case is completely distinguishable inasmuch as in the present case the decree has been varied by the first appellate court and the decree of the trial court has merged in the decree of the appellate court. As already stated in the earlier part of this judgment, I am not inclined to accept the contention that a further time of four months was fixed by the first appellate court, but so far as the rationale of that decision is concerned, it is more than clear that it has no application to the facts and circumstances of the present case. I am, therefore, of opinion that the contention of the learned counsel for the respondents that there is no subsisting decree and this appeal is liable to be dismissed on that ground alone, has no force and I herely over rule it.