NARAYAN DHONDOPANT Vs. SANGIDAS BIHARILAL

JUDGEMENT

(1.) . 1. It is expedient to give a brief statement of the facts so far as they are material for the purposes of this appeal. The preliminary decree for foreclosure was made on 26th January 1924, in Civil Suit No. 314 of 1922 by the Subordinate Judge, Ghandur, who ordered that the defendants can redeem the property by paying into Court Rs. 373-4-0 on or before 26th July 1924, and if they fail to make such payment on or before the said 26th July 1924, they shall be debarred from all right to redeem the property. No payment as ordered having been made, the mortgagee applied on 30th July 1924, for a final decree declaring that the defendants are debarred from all right to redeem the mortgaged property, and on this application, the Court ordered on 27th August 1924, that notices be issued to defendants to show cause against the application. Defendant, Narayan, appeared in Court on 8th November 1924, and expressed his willingness to pay the decretal amount just then, and also filed an application for extension of time up to 8th November 1924, agreeing to pay such interest as the Court orders. He stated in the application that he could not pay the amount on the due date, as the crop was not ready, and also because he could not borrow the required amount. This application was supported by an affidavit. The decree-holder refused to accept the amount, and objected to any extension of time. As another defendant was not served, the case was adjourned to 20th December 1924, on which date the pleader for the decree-holder, who already had six weeks to consider over the defendant's application, requested the Court to grant him time, to reply to the application, which was granted up to 17th January 1925. Narayan submitted an application on 13th November 1924, for being allowed to deposit Rs. 386-9-0 in Court to be paid to the decree-holder and the Court on the same date passed the following order: Filed by Mr. R.V. Chandorkar, pleader. N.N., to receive the amount of Rs. 386-9-0 for payment to plaintifi and pass a receipt. and the amount was deposited on 20th November 1924. After framing issues and examining witnesses the Court ordered on 3rd April 1925, that, in its opinion, under the circumstances of the case the property should not be foreclosed and the period should be extended, and ordered payment of interest at Rs. 2 per cent, per mensem from the date fixed for payment up to 3rd April 1925, and allowed defendant to deposit the balance within 15 days, which was deposited on 14th April 1925, and passed a final decree on 18th April 1925, in favour of defendant 4, Naraxan.

(2.) THE decree-holder appealed against the said decree and the learned Second Additional District Judge, Amraoti, has allowed the appeal and has passed a final decree for foreclosure in favour of the decree-holder. Against the above decree Narayan has filed this appeal, and it is urged on his behalf that the lower appellate Court ought not to have interfered with the judicial discretion exercised by the trial Court in granting extension to Narayan.

(3.) AS observed by Stanyon, A.J.C., in Balkishan v. Atmaram [1914] 10 N.L.R. 150 : the primary object of a mortgage is to secure the payment of debt, usually much below the market value of the property mortgaged. It is not intended, at least by the mortgagor, and ostensibly also by the mortgagee, to work as a forfeiture of estate. Therefore; a mortgagee who gets back his money, with compensation for any delay which the mortgagor could not reasonably avoid, suffers no hardship.