CHATUR BAWA MULJI Vs. POPATLAL NARANDAS

JUDGEMENT

(1.) In this case there was a preliminary decree for redemption passed in January 1923 in favour of the respondent-mortgagors. They had to pay the money within six months. The order provided that if they did not do so, the mortgagee was to be entitled to recover the same by sale of the property in suit. In fact they did not pay the money within six months, and they only paid it into Court in September 1924. On the other hand, the mortgagee in the meanwhile had not taken any steps to ask either for sale or foreclosure by reason of the default in payment by the mortgagors. The conduct of both parties may to some degree be accounted for by the fact that there was a second appeal by the mortgagee to the High Court against the preliminary decree for redemption, but eventually he was unsuccessful.

(2.) Now it appears that the money was accepted by the Court in error as to the true facts, that is to say, the Clerk of the Court was not told that the payment was out of time. The same day the payment was made, the mortgagors applied for the preliminary decree to be made absolute. Then, on October 6, 1924, they applied for the delay to be excused : and on November 8, "a decree absolute for redemption" was passed. This decree does not appear to have been drawn up, but we understand it to mean that in effect the Court accepted the payment and directed the mortgagee to convey the property to the mortgagors.

(3.) There was an appeal by the mortgagee to the Joint Judge, who rejected it on the ground that no appeal lay from an order extending time for payment. Now we do not propose to decide whether in that particular respect the learned Joint Judge was correct or not. But assuming for the sake of argument that an appeal did lie to him, still in our opinion the trial Court was clearly right in extending in effect the time for payment of the money. The position was this. Both parties had been guilty of laches-the mortgagors in not paying the money, and the mortgagee in not applying for an order for sale or foreclosure. What then were the remedies for the mortgagee ? He could apply for a decree absolute for sale. But I take it that no Court would order the mortgaged property to be sold, when the money was already deposited in Court and was available for the mortgagee. If, on the other hand, he applied for foreclosure, we do not think that any Court of equity would in a case like the present pass a decree for foreclosure when the money was there in Court ready for the mortgagee to take it out, and where the mortgagee himself had waited for at least a year before making any application to enforce his rights under his preliminary decree. If, on the other hand, he relied on his second appeal to the High Court as justifying his delay, then the delay of his opponent in paying the money ought also to be excused.