RAMJI BAPUJI PATIL Vs. PANDHARINATH RAVJI

JUDGEMENT

(1.) The question referred for the decision of the Full Bench is whether a mortgagor, who has brought a suit for redemption and obtained a decree nisi, which neither the mortgagor nor the mortgagee has applied to be made absolute, can, after the execution of that decree is time- barred, bring a fresh suit for redemption?

(2.) It is desirable, before discussing this question, to state shortly how it arises in the present case. The plaintiff filed a suit for redemption of a mortgage with possession and obtained a decree on the 30th September 1908 that the plaintiff should pay Rs. 117 and costs within twelve months and redeem the property, or in default the defendant should recover the amount by sale of the property. The plaintiff filed an application No. 742 of 1909 for payment of the money, but failed to pay by the due date, and his application was struck off on the 25th January 1910. The mortgagee took no steps under the decree to obtain a decree absolute, and on the 12th December 1913, the plaintiff paid the money due into Court. The mortgagee, however, objected to take it. The plaintiff s pleader argued that it should be treated as an application to enlarge time for payment under Order XXXIV, Rule 8, Clause (4), of the Civil Procedure Code. The learned Judge, however, thought that the law of limitation governed such cases and that the application was out of time. He therefore dismissed the same.

(3.) The plaintiff in the present suit recites the decree and the payment of decretal amount into Court, the dismissal of his application as time-barred, the fact that the defendants had not applied for sale or for making the decree absolute, and asserts that the plaintiff has still the right to redeem the mortgage. The suit was filed a month after the dismissal of the plaintiff s application in the first suit.