BASANTA KUMAR ADAK Vs. RADHA RANI DASI

JUDGEMENT

(1.) THIS is an appeal against an order dismissing an application for execution. The decree- holder obtained a decree declaring his right to recover possession of certain, property subject to the right of the judgment-debtor to redeem on payment of a certain sum within six months of the date of the decree. Against that decree, the judgment-debtor appealed and the decree- holder filed a petition of cross-objection. Both the appeal and the cross-objection were dismissed and the decree of the First Court was confirmed. Then, within six months of the date of the appellate decree, but more than six months after the date of the original decree, the judgment-debtor paid into Court the sum necessary for the redemption. The only question for determination in this appeal is whether the lower Courts were right in holding that the judgment-debtor was in time. In our opinion, on the authority of the decisions of this Court, we must hold that this appeal must succeed. In the case or Bhola Nath Bhuttacharjee V/s. Kanti Chundra Bhuttacharjee 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208 the learned Judges held that where in a suit on a mortgage the decree of the Appellate Court simply dismissed the appeal leaving the decree of the First Court untouched, the time for redemption would run from the date of the decree of the First Court. In that case, Maclean, C.J., decided the appeal on another ground. But, in a later case Faijuddi Sardar V/s. Asimuddi Biswas 11 C.W.N. 679 the same learned Chief Justice expressly stated when the same point arose again that he entirely agreed with the view taken by Mr. Justice Banerjee in the case of Bhola Nath Bhuttacharjee v. Kanti Chundra Bliuttacharjee 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208 above referred to. In that case, the decree of the lower Court directed that the defendants might pay up the mortgage-decree of the plaintiffs within six months and retain possession of the land and that, in default, the plaintiffs would get khas possession and it was held that the six months time allowed to the defendants should run from the date of the First Court's decree and not the date of the Appellate Court's decree. THIS view is also supported by the decision of the Madras High Court in the case of Ramaswami Kone V/s. Snndara Kone 31 M. 28 : 17 M.L.J. 495 : 3 M.L.T. 26. In that case also the objection taken on behalf of the respondent in the present case is met; for, at page 32 of the report of that case, it was held that it was not open to the learned Judges to construe such a decree in one way when the condition was imposed on the respondent in the appeal and in another way when it was imposed on the appellant. THIS, we think, is the right view and is in no way affected by the fact relied on by the respondent that the decree-holder filed a petition of cross-objection denying that the judgment-debtor had any right of redemption. On behalf of the respondent, reliance is placed on the case of Satvaji Balajirao Deshmukh V/s. Sakharlal Atmaram Shet 26 Ind. Cas. 754 : 39 B. 175 : 16 Bom. L.R. 778. In that case, we are unable to understand the reasons given for distinguishing the case of Bhola Nath Bhuttacharjee V/s. Kanti Chundra Bhuttacharjee 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208 already referred to. The decision in that case is contrary to the decisions of the Calcutta cases which we are bound to follow. It is also contended on behalf of the respondent that the decree-holder should have raised the objection to the redemption when he received notice of the payment of the money into Court. It was open to the decree-holder to ignore that payment and apply for execution of the decree on the ground that the payment was not made within the time fixed for the redemption of the property. Taking this view, we decree this appeal and set aside the decisions of the lower Courts. The objection made by the judgment-debtor in the execution proceedings is overruled and the execution will proceed at the instance of the decree-holder according to law. The appellant will get his costs in this Court as well as in the Courts below. We assess the hearing fee in this Court at one gold mohur.