RAMNARAYAN MARWADI Vs. UKANDA

JUDGEMENT

(1.) THE facts which I have to consider are these: A preliminary decree for foreclosure was passed by which the defendants were directed to pay over Rs. 7,000 to the plaintiff on or before 13th February 1927. An appeal was decided on 5th February 1927, and the decretal amount was reduced considerably. Mr. Subhedar for defendant 3 asked that the date for payment should be extended and on 10th February 1927, the date fixed for payment was changed from 13th February 1926 to 10th March 1927. It may be conceded that as the fixation of the date for payment was not discussed when defendant 3 was present in person, Mr. Subhedar was unable to press for a longer date, but the fixation of a date one month ahead should have impressed upon defendant 3 the necessity for prompt payment. The payment was not made before the due date and an application for final decree was made on 22nd March 1927. The case was adjourned for hearing twice for want of time. Then on 25th June 1927, defendant 3 tendered Rs. 2,500 in part payment and prayed for time till the next harvest to pay the balance. The plaintiff refused to accept part payment and defendant 3 was directed to deposit the amount in Court and submit in writing his grounds for extension of time. The case was adjourned till 16th July 1927. Defendant 3 submitted his statement and on 16th July 1927, he was ready to pay the decretal amount. He had, however, not brought any amount as interest by way of compensation or as costs to be paid to the plaintiff. The plaintiff again refused to receive the amount. Statements were taken and on 19th November 1927, the Judge held that an extension of time should be granted on condition that some interest was paid. Interest was paid and the Judge passed a final decree to the effect that the mortgage-debt had been satisfied.

(2.) IN appeal it is urged that as the judgment-debtors did not show sufficient cause for their failure to pay the amount within the time fixed, the lower Court could not legally extend the time. Now, the reasons given by the lower Court are (1) that it was not a small amount that the defendant had to pay and (2) that payment had been made after a small delay of four months, It appears to have followed the dictum in Govinda v. Gangaram [1889] 2 C.P.L.R. 29 that where a few days after the fixed time the mortgagor pays down the whole of the mortgage-money he should not forfeit his estate.

(3.) BUT the facts of this case differ from those considered in Motilal v. Ujiar Singh A.I.R. 1928 P.C. 137 In that case their Lordships of the Privy Council had before them a definite finding that there was no good cause for extension. In the present case defendant 3 asked for extension by a statement referring to the bad harvest during the previous year and other matters. This statement is belated and appears to refer primarily to a difficulty in raising the money in July 1927, but it can be considered an attempt to show that good cause existed for non-payment prior to 10th March 1927. The truth of the statement and its sufficiency, if true, has not been considered by the first Court. I, therefore, direct the first Court to consider the reasons given by defendant 3 and to come to the conclusion whether he had good cause for the delay in making the payment. Costs of this appeal will be costs in the suit.