WAMANRAO Vs. BHAGWAN PRASAD

JUDGEMENT

(1.) THE facts necessary for the disposal of this appeal are shortly these. On 6th November 1925 the usual preliminary decree for foreclosure was passed by the Additional District Judge, Narsinghpur, against the appellant mortgagor fixing 6th May 1926 as the date for payment of the decretal amount of Rs. 14,935. In the proceedings relating to the final decree, which were started by the respondent mortgagee on 10th July 1926, the appellant prayed for and was allowed an extension of time for payment till 30th November 1926, subject to payment of interest at 6 per cent per annum on the decretal amount from 6th July 1926 to 30th November 1926. No further steps were taken by the appellant either for payment or for applying for further extension of time until the respondent filed his second application, on 5th March 1928, for making the preliminary decree final. For seven months notices could not be served on the appellant mortgagor of this application. Ultimately on 27th October 1928 he appeared in the lower Court and submitted through his pleader an application for the grant for retrospective extension of time till 30th April 1929, the reasons assigned being that on account of one Anupurnabai a prior mortgagee having filed a suit on her mortgage the appellant was unable to secure a loan with which to pay off the present decretal debt, and that there were successive failure of crops for the last three years.

(2.) THE respondent naturally opposed the prayer for any further extension of time being granted to the appellant. The lower Court framed the necessary issue: Whether it would be proper and equitable to grant extension of time to the defendant. and as the parties did not wish to adduce evidence, passed an order refusing further extension and made the conditional decree for foreclosure final. Against this order and decree the present appeal is filed. The only argument advanced in support of the appeal is that until the final disposal of the prior mortgagee's suit an appeal against which is now pending in this Court the decree nisi in the present case should not be made absolute, because it was on account of the pendency of this large claim that the appellant could not secure a loan to pay off the respondent's decree.

(3.) THERE is nothing on the record of this case to show that the appellant made any bona fide efforts to secure loans for payment to the respondent, and in the absence of such evidence it is impossible for this Court to hold that the refusal of the lower Court for further extension was either illegal or inequitable. In Balkrishan v. Atmaram [1914] 10 N.L.R. 150 this Court has very clearly laid down that in every case, before extending time for the payment of money in statisfaction of a fore closure decree, the Court has to be satisfied, in the exercise of a reasonable discretion, that there is good cause for allowing the extension, that this good cause is not to be assumed either from non-payment or deferred payment, and that it must be alleged and judicially proved. In a very recent case from this Court which went up to the Privy Council, their Lordships also affirmed the principle that extension of time can only be granted for good cause shown under Order 34, Rule 3 (2), Civil P.C. and not otherwise: Moti Lal v. Ujiar Singh A.I.R. 1928 P.C. 137. Bearing in mind the principles laid down above it is manifest that the reason assigned for the grant of extension of time in the present case cannot be called good cause within the meaning of Order 34, Rule 3(2), Civil P.C. For the foregoing reasons this appeal fails and is dismissed with cost.