BEHARI PANDEY Vs. RAMANAND PANDEY

JUDGEMENT

(1.) This is an appeal by the mortgagee from a final decree passed in a redemption suit. The respondents brought a suit for redemption of a usufructuary mortgage in favour of the appellants. The Court passed a decree on 4 November 1925, which was prepared in terms of the following order: The suit is decreed conditional on the plaintiffs depositing Rs. 199-15-0 to the credit of the defendants in this Court within six months; prepare a preliminary decree for redemption under Order 34, Rule 7, Civil P.C. On compliance the plaintiffs shall get possession and costs of the suit; on failure their suit shall stand dismissed with costs.

(2.) The mortgagor did not deposit the mortgage money within six months, but after the expiry of that period he applied for extension of time, which was granted. He deposited the entire mortgage money on which the Court passed a final decree on 28 July 1927, directing delivery of possession to the mortgagor. At the time when the final decree was passed, the mortgagee objected on the ground that the Court had no power to extend the time and that the suit stood dismissed as directed by the decree of the Court dated 4 November 1925. This objection was overruled and a final decree was passed. The mortgagee appealed to the learned District Judge, who dismissed the appeal not on the merits but on the ground that the Court could not question the order of the first Court granting extension of time for the deposit of the mortgage money. We are of opinion that the learned Judge was wrong in holding that the mortgagee could not impugn the order of the first Court granting an extension of time when he appealed from the final decree. The lower appellate Court ought to have decided the question raised by the mortgagee on the merits. In the second appeal before us the argument put forward on behalf of the mortgagee is the same, namely, that the decree dated 4 November 1925 was absolute in its character and that the Court had no power to extend the time for the deposit of the mortgage money. Mr. Gupta, who appeared in support of this appeal, has drawn our attention to a number of rulings none of which seems to us to be on all fours with the present case.

(3.) We are clearly of opinion that the decision of the case depends upon the proper construction to be placed upon the terms of the decree of 4 November 1925. If it was the intention of the Court that, on failure on the mortgagee to deposit the mortgage money within six months allowed by the decree, the suit should automatically stand dismissed, the mortgagee's contention is sound. If, on the other hand, the Court intended to do no more than pass a preliminary decree for redemption, so that the consequence of nonpayment within the period fixed was that a final decree for foreclosure or sale should follow, the mortgagee's contention cannot prevail. There is no doubt that the Court was wrong in mentioning in the decree the consequence of failure to deposit the money within the time allowed that the suit should stand dismissed. The mortgage in question being usufructuary, the consequence, should have been stated to be the sale of the property. We have no doubt whatever that the Court did not intend to pass a final decree concluding the suit. The decree says in so many words that it is a preliminary decree under Order 34, Rule 7, Civil P.C., and in further adding that "on failure their suit shall stand dismissed with costs" we do not think the Court meant that without any further order of the Court the suit should stand automatically dismissed. All it meant was that on failure of the mortgagor to deposit the mortgage money within the time allowed for redemption, it would be open to the the mortgagee to apply for dismissal of the suit, and that the order of dismissal, if passed, would be embodied in a final decree which would conclude the suit. In this view, it was open to the Court of first instance to grant an extension of time to the mortgagor under Order 34, Rule 8, proviso, or Section 148, Civil P.C. We therefore uphold the decree of the Court below, though on different grounds. This appeal is dismissed with costs.