MT. MANJARI Vs. SURAJMAL

JUDGEMENT

(1.) 1. On 8th July 1912, Motilal Mansaram as owner of the firm Motilal Champalal, instituted a suit on a mortgage for Rs. 3,000 against Punjaji and his son Zingu. On 22nd August 1912 a consent decree for foreclosure was passed in the plaintiffs' favour on the basis of a compromise arrived at between the parties. The decree provided that defendants 1 and 2 should pay Rs. 5,175 in twenty-three annual instalments of Rs. 225 payable at the end of December every year, that in default of payment of one instalment interest at 8 annas per cent per mensem was to be charged, and that in default of two instalments the whole amount was to become payable at once and that if payment was not made as ordered, the defendants were to be debarred from all rights to redeem the property and the mortgaged property was to be foreclosed and to be put in the plaintiffs' possession. On 23rd February 1926 Hiralal and Surajmal, sons of deceased plaintiff Motilal made an application to the lower Court for bringing on record Mt. Manjari, the legal representative of the deceased defendants 1 and 2 and then to make the decree final, default having been committed in payment of the instalment due on 31st January 1926. On 17th April 1926, the application was summarily rejected as not maintainable on the ground that the decree passed in 1912, being an instalment compromise decree, there was no necessity of passing a final decree in the case. It seems that this order of rejection was set aside on an appeal being preferred therefrom to this Court, and the case was remanded to the Court below for proceeding with the plaintiffs' application for making the decree final. After the case was sent back to the lower Court, the new defendant Mt. Manjari presented an application, on 9th October 1926 for granting to her extension of time for payment of the overdue instalment of 1925. On 7th January 1927 she deposited Rs. 225 in Court. The defendant's prayer for extension was opposed by the plaintiff who denied the grounds set out in the application and urged that the Court had no jurisdiction, to extend time as the decree was a consent decree, and as the High Court in its remanding judgment had directed that the decree should be made final. The lower Court refused to grant extension as the grounds stated in the application were not proved, and as-default had been made in respect of two instalments, passed a final decree for foreclosure.

(2.) THE defendant Mt. Manjaribai had' appealed to this Court. Her appeal is directed against the order refusing extension of time and passing the final decree for foreclosure. Before entering into the merits of the appeal I shall deal with the preliminary objection raised on behalf of the respondents in regard to the question of Court-fees. It seems that relying on the decision in Dadnoo v. Somnath [1911] 7 N.L.R. 41, the appellant has paid a. Court-fee of Rs. 10 on the memorandum of appeal. It is argued on the respondents' behalf that as the appellant seeks reversal of the final decree for foreclosure passed by the lower Court she should be called upon to pay ad valorem Court-fees. It seems to me that the appeal in question is substantially one under Clause (c), Rule 1, Order 43, Civil P.C., from an order under Order 34, Rule 3, Civil P.C., refusing to extend time for the; payment of mortgage money, and not one from a final decree. Success of the appellant in such an appeal from an order under Order 34, Rule 3, Civil P.C., will necessarily have the effect of vacating the final decree for foreclosure which followed the refusal to extend time. In such a case therefore the defendant need not appeal from the final decree which automatically followed the refusal of the lower Court to extend time for payment of the mortgage money. Although therefore it is stated in the memorandum of appeal that the appeal is directed against the order refusing to extend time and passing a final decree of foreclosure it must be treated to be virtually an appeal under Clause (c), Rule 1, Order 43, Civil P.C., against an order refusing to extend time and to be chargeable as such with Court-fees. In this view the appellant has paid more than the requisite amount of the Court-fees payable on a memorandum of appeal against an order. It may further be noted in this connexion that the memorandum of appeal nowhere says that the appeal is from a final decree. As the appeal is one from an order and not from a decree neither the case Bajrangilal v. Mahabir Kuniuar [1913] 35 All. 476 nor the unreported case Balaji v. Vallabdas Since reported in A.I.R. 1928 Nag. 146 decided by Findlay, J.C., relied upon by the respondent's learned pleader has any application. In both these cases, the appeal was preferred from a final decree. The respondents' preliminary objection in regard to inadequacy of the amount of Court-fees is therefore disallowed.

(3.) THIS case also can be of no assistance to the respondents, as the Court has as much power to extend time under Order 34, Rule 3, in a suit for foreclosure as it has under Order 34 Rule 8, in a suit for redemption and it is this power which is invoked by the appellant in this case. None of the cases relied on by the respondents does support their contention that the provisions of Order 34, Civil P.C., are inapplicable to an instalment consent decree. It is worthy of note, in this connexion that the respondents-plaintiffs who relied on this contention applied to the lower Court for making the decree final, and thus admitted by implication the applicability of the provisions of Order 34, Civil P.C., and the necessity of obtaining a final decree before applying for execution. The stand which they have now taken in this Court is thus anything but consistent with their conduct involved in their application for making the decree final. On all these grounds I hold that the contention raised on behalf of the respondents is lacking in soundness and cannot prevail. The appellant's application under the proviso to Clause (3), Rule 3, Order 34, Civil P.C., for extension of time is quite competent and merits consideration.