DASARI CHENNAIAH Vs. DASARI VENKATRAMAIAH
HIGH COURT OF ANDHRA PRADESH
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(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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