MORU NARUSHET GUJAR Vs. GANGABAI RAMCHANDRA LILACHAND

JUDGEMENT

(1.) The facts, which have given. rise to this appeal, are briefly these : The plaintiffs sued the defendants in this case in 1912 to recover possession of S. No. 87, plot No. 1, or such portion thereof, as they may be found entitled to, with mesne profits ; or, in the alternative, for redemption of certain mortgages referred to in the plaint. On. March 26, the following decree was passed by the trial Court: Plaintiff to pay into Court the amount due to Defandant No. 2 Rs. 420 within six months, of this date. On such payment they are to recover S. No. 87, plot No. 1, in suit. In cash of default they shall be debarred from all right to redeem the property, The usual preliminary decree for redemption to be drawn up with the necessary changes as indicated.

(2.) Defendant No. 2 appealed to the District Court of Thana. That appeal was allowed, the decree of the trial Court was reversed, and the plaintiff's suit was dismissed with all costs on the plaintiffs by the Assistant Judge who heard the appeal. Prom that decree the plaintiffs appealed to the High Court. For the reasons given in the judgment in Moru V/s. Hassan [1918] 20 Bom. L.R. 929, the High Court set aside the decree of the lower appellate Court and restored that of the trial Court with costs in the lower appellate Court and the High Court on the defendants.

(3.) It may be mentioned that, in pursuance of the decree of the trial Court, the plaintiff's had deposited the decretal amount in Court on April 2, 1914, and had taken possession of the land on June 19, 1914. But, after the preliminary decree of the trial Court was reversed in appeal on February 29,1916, the successful appellant re-obtained possession of the lands in suit, and it appears that in 1917 the money deposited in Court was returned to the plaintiffs. 3. On July 23, 1921, the plaintiff's filed the present darkhast claiming possession of the lands and deposited the amount of Rs. 420 along with the darkhast. They prayed for extension of time, if necessary, for the payment of the amount under the decree. The Defendant No. 2 contended that, as the sum of Secs.420 was not paid into Court within six months from the date of the High Court decree, the plaintiff's right to redeem was extinguished ; that the plaintiffs never applied to have the time fixed for payment of the decretal amount into Court extended by that Court ; that Defendant No. 2 was not bound to have the foreclosure order confirmed by the Court, and that the plaintiffs right to redeem was barred, even though there was no final decree passed in favour of Defendant No. 2 in consequence of the non-payment of the decretal amount.