Decided on August 02,1963



- (1.) These two Petitions Nos. 2155 and 2156 of 1961 arise out of the Order of the District Munsif of Gudivada, dated i8th April, 1961 and made in C.M.Ps. Nos. 1543 of 1960 and 1781 of 1960 in O.S. No. 160 of 1958. C.M.P. No. 1543 of 1960 was an application filed by the second defendant in the suit under Order 34, rule 7 and section 151, Civil Procedure Code for dismissing the suit; while the second petition, i.e., G.M.P. No. 1781 of 1960 was an application by the plaintiff under Order 34, rule 4 (2) and rule 4 (4) and sections 148 and 151, Civil Porcedure Code, praying the Court to extend the time for payment and treat the deposit made as valid.
(2.) The suit O.S. No. 160 of 1958 was filed on the basis of a mortgage executed by the first defendant in favour of the plaintiff. The second defendant was a previous mortgagee. A decree was passed in the said suit directing the plaintiff to deposit a sum of Rs.111-43 nP. for payment to the second defendant before 3oth November, 1959 or the period extended by the Court. We are only concerned with the second defendant in this revision petition.
(3.) It appears that the said amount was not deposited nor there was a petition to extend the time. On the other hand, an application in I.A.No. 370 of 1960 was filed to amend the preliminary decree on 26th November, 1959 ; that is about four days prior to the time allowed by the decree for depositing the amount. Thereupon notices were issued to the other side but no appearance seems to have been put in by any of the defendants. The decree was amended on 26th February, 1960 and it was found that the sum due to the second defendant was Rs. 53-81 nP. The plaintiff then deposited the amount on 26th March, 1960 and issued notices of deposit to the Advocates for the defendants. On 13th April, 1960, the plaintiff applied for the passing of the final decree. At this juncture the second defendant filed I.A. No. 1543 of the dismissal of the suit as under clause (4) of the decree it was stipulated that in case the amount was not paid within the prescribed period, the second defendant would be entitled to approach the Court for an order of dismissal. The plaintiff then filed I. A. No. 1781 of 1960 for extension of the time.;

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