BABU BATUK NATH Vs. MUSAMMAT MUNNI

JUDGEMENT

(1.) The appellant is the purchaser of a decree obtained upon a mortgage on March 29th, 1898, against the respondents or the persons whom they represent. The original decree having been written upon very flimsy paper is now very much torn and is in places illegible but it is admitted by the parties to this appeal that the following translation of it prepared in First Appeal No. 132 of 1898 decided on February 14 1900 is correct. The translation of the relevant portion of the decree runs as follows: It is ordered that the plaintiff do pay Rs. 975 on account of Court-fee within a week in respect of Rs. 29,534 claimed by defendants Nos. 2 to 7 as prior mortgage debt, the plaintiff do further pay to defendants Nos. 2 to 7 or deposit in Court Rs. 29,534 with interest at Rs. 6 per cent. per annum together with one set of Pleader's fees and other costs incurred by defendants Nos. 2 to 7 within 5 months from to-day. If the plaintiff fails to pay the said Court-fee or the said prior mortgage debt within the periods allowed, his suit shall stand dismissed with costs and that if the plaintiff carry out both the above orders then it is decreed and hereby declared that on the 29 day of September 1898 the sum of Rs. 79,668-1-3 with future interest and interest pendente lite at Rs. 6 per cent, per annum will be payable to the plaintiff, namely, (here follow details of the last mentioned sum) and it is hereby ordered that upon the defendants Nos. 1, 8, 15 and 16 to 22 (the mortgagee and the subsequent mortgagees) paying tae aforesaid sum of Rs. 79,668-1-3 to the plaintiff or into Court on the 29 day of September 1898, the plaintiff shall deliver up to the defendant or to such person, as he appoints all documents in his possession or power relating to the property specified below and shall transfer the property to the defendant free from all encumbrances created by the plaintiff or any person claiming under him or by those under whom he claims. But if such payment be not made as aforesaid on or before the 29 day of September 1898, then it is ordered that the said property or a sufficient part thereof be sold, i.e., the mortgaged property mentioned in the accompanying list.... The decree-holder paid the required amount of Court-fees within the time limited. On second occasion the Court extended the time for payment of the amount due to the prior mortgagees. Ultimately in March 1902 the Court declined to allow any further time and in June of the same year an application for review of that order was dismissed. Notwithstanding the refusal of the Court in 1902 to grant further time as stated, the decree-holder in September 1907 paid into Court the amount due to the prior mortgagees and they withdrew it.

(2.) In October 1907, the decree-holder applied to the Court for an order absolute for the sale of the mortgaged property. His application was rejected on the ground that the decree-holder not having paid the amount due to the prior mortgagee within time, the suit by force of the provision to that effect contained in the decree stands dismissed and there is no decree for sale which the decree-holder can enforce.

(3.) The decree-holder has appealed. On his behalf it is urged that the provision in the decree fixing a time within which the decree-holder was to pay the amount due to the prior mortgagees was intended for the benefit of the prior mortgagees and does not concern either the mortgagor or the subsequent mortgagees, that when the Court accepted the money deposited by the decree-holder and paid it over to the prior mortgagees it must be deemed to have extended the time for payment to the prior mortgagees notwithstanding its refusal to allow any further time in 1902.