SM SOUDAMINI DAS Vs. NABALAK MIA BHUIYA

JUDGEMENT

(1.) In this appeal the question is as to whether the lower appellate Court should have heard the appellant's appeal on the merits. The suit was brought by the appellant upon a mortgage bond. It was decreed by the learned Munsif on 22 June, 1927 with the reservation that defendants 2, 3, and 6 would be allowed to redeem their share by paying Rs. 265-4-0 to the mortgagee. Ten months after, an application was made by the defendants questioning the amount which they were ordered to pay for redemption and on this application the amount was reduced to Rs. 77-6-0 on 30 April 1928. The plaintiff-appellant before us preferred an appeal to the lower appellate Court within thirty days from 30 April 1928 questioning the decree so far as it allowed the defendants to redeem but she did not appeal against the decree of the learned Munsif dated 22nd June, 1927. The learned District Judge has held that the appeal was out of time as the plaintiff should have appealed from the original decree and not from the amended decree. The learned Judge seems to be of opinion that the plaintiff not having appealed from the original decree which allowed the defendants the right to redeem was not entitled to challenge that portion of the decree in appeal against the order of 30th April 1928. He has for this view refused to accede to the further prayer of the appellant, namely, to extend the time for appealing, under Section 5, Lim. Act. In my judgment the learned District Judge has not taken the correct view of the matter. I considered a similar question and gave my view fully upon this point in the case of Aditya Kumar Bhattacharjee V/s. Abinash Chandra Mukhopadhya A.I.R. 1931Cal. 323. It was held by my learned brother Costello, J. and myself that if a decree is amended either by way of review or under Section 206 ( Section 152, of the present Code) the decree to be appealed against is the amended decree and no appeal should therefore lie from the original decree.

(2.) It is argued on behalf of the learned advocate for the respondents that in the appeal before the lower appellate Court the only question which could be raised on behalf of the appellant was with regard to the amount which the defendants were asked to deposit in order to redeem and not with regard to the correctness of the decree of the trial Court giving the right of redemption to the defendants. This contention should not prevail. Even if the original decree of the trial Court, dated 22 June, 1927, was wrong the plaintiff was not bound to challenge it because by that decree she got adequate consideration for the mortgage; but when the amount was subsequently reduced she had reasons to believe that the reduced amount was not sufficient to meet her claim and she was entitled to question the entire decree allowing the defendants to redeem the mortgage partially. The reported cases on this point are numerous. Reference may be made to the cases of Amar Chand Kundu V/s. Asad Ali Khan [1905] 32 Cal. 908, Brojo Lal Rai Chowdhury V/s. Tara Prosanna Bhattaaharji [1907] 3 C.L.J. 188 and Joy Kishen Mookerji V/s. Ataoor Rohoman [1881] 6 Cal. 22. I need not dilate upon this point because I. have already expressed my view in the case referred to above.

(3.) It further seems to me that this is a proper case in which extension of time should have been allowed to the appellant under Section 5, Lim. Act, as the circumstances made out sufficient cause within the meaning of that section.