(1.)THE 6th defendant who is the appellant, sued in O. S. 226 of 1120 on the strength of a melotti Ext. D and obtained a decree for redemption of a mortgage. THE plaintiffs, of whom the second plaintiff is the respondent in this appeal, sued in O. S. 234 of 1120 to redeem both the melotti and the prior mortgage. THE decree as finally passed in O. S. 234 of 1120 directed payment by the second plaintiff, of additional court-fee before executing the decree and the concluding part of the decree was in these terms: THE decree also provided, that in case the 2nd plaintiff is not executing the decree, the 6th defendant might put her decree in execution. According to the plaintiffs, they had already obtained delivery of possession of the property in pursuance of an earlier decree in the same suit which was afterwards set aside, and have been in possession at the time the decree was passed finally. THE second plaintiff did not pay the court-fee as directed. THE 6th defendant executed her decree and according to her came into possession and still continues to be in possession. Afterwards, the 2nd plaintiff filed execution petition 93 of 1958, alleging that while the plaintiff had been in possession, the 6th defendant took possession unauthorisedly on the 1st April 1957, and praying that the property might be delivered to him. THE execution court allowed the second plaintiff to make the deposit of court-fee, and permitted him to execute the decree. An appeal which was taken against the order by the 6th defendant was dismissed.
(2.)IN second appeal against the above, the principal point taken for the 6th defendant was, that the executing court had no jurisdiction to extend the time fixed by the court which passed the decree, for the payment of court-fee. The courts below appear to have applied the provisions of S. 148 and 149 of the Civil Procedure Code for extending the time and there is good deal of force in the contention of the learned counsel for the 6th defendant, that according to these provisions, it is only the court which fixed the time originally which can extend the time. There is authority for this view in Narayanan Nair Raman Nair v. Govindan Nair Raman Nair (AIR. 1952 TC. 440 ).
At the same time, it by no means follows, that the court which passed the decree, had intended the direction for the payment of court-fee, to be final so as to deprive itself of all power to extend the period. In a case reported in Surajmal Marwari v. Bhubaneshwar Prasad (AIR. 1940 Patna 50) which appears to be on all fours with the present, the court in decreeing the suit had ordered payment of the deficit court-fee within a period, and directed that otherwise he could not execute the decree. It was held that the court could accept the court-fee after the prescribed time. In the matter of extending time for payment of deficit court-fee, the Supreme court has made a pronouncement in Mahanth Ram Das v. Ganga Das AIR. 1961 SC. 882 observing: "the High Court in the order quoted, went by the letter of the original order under which time for payment had been fixed. S. 148 of the code, in terms, allows extension of time, even if the original period fixed has expired, and S. 149 is equally liberal. . . . Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed. " Their Lordships were also of the opinion that the case might be considered even in the exercise of the inherent powers of the court.
At the hearing of this appeal the jurisdiction of the court which passed the decree to extend the time was not disputed. It was argued for the 2nd plaintiff, that because he was in possession of the property at the time the final decree was passed there was no need to execute the decree, and this was responsible for the omission to pay the court fee, and that later events were not anticipated. I do not wish to express any opinion as to this, because I am of the view, that the matter really pertains to the jurisdiction of the court which passed the decree, to consider the same. The decree was passed by the Vaikom Munsiff's Court, and the court which was executing the decree, and which granted the extension of time was the shertallai Munsiff's Court; in this view the contention of counsel for the 6th defendant cannot be treated as one of mere technicality. I therefore come to the conclusion, that the extension of time for the payment of court fee by the executing court was not in order, but this will not preclude the 2nd plaintiff from moving the court which passed the decree to grant the extension.
(3.)IT was also contended on the basis of S. 3 clause (25)sub-clause (q) of Ordinance 8 of 1962, that the transaction under which the 6th defendant is now in possession of the property, being described to be an Otti, she is in the position of a tenant, and under S. 5 is not liable to be evicted. IT must also be shown that the otti in question is not a usufructuary mortgage as defined in the Transfer of Property Act, 1882. This question will have to be decided in proper time, if it becomes necessary, by the execution court.
It was represented that the plaintiffs have already paid court foe in the executing court. If the court which passed the decree is inclined to grant time for the payment of court fee, the amount paid in the executing court may be given credit to. With these observations and subject to the above, the order under appeal is sot aside and the case sent back. I do not order costs in this court.