- (1.) THIS is civil regular first appeal by the plaintiff Tikamchand against the judgment and final decree of the Sub-Judge, First Class, Ajmer dated the 14th December, 1954, in a suit for redemption.
(2.) AS this appeal fails on a preliminary objection raised on behalf of the contesting defendants who are the mortgagees, only a few facts need be stated. It is admitted between the parties that the suit property was mortgaged with possession on the 29th August, 1934, by the plaintiff along with defendants Nos. 5 to 7 to defendants Nos. 1 to 4 for a sum of Rs. 11,000/ -. The plaintiff's case was that the defendants had recovered a sum of Rs. 1666/14/- over and above the interest payable to them between the 29th August, 1936 and 31st March, 1947, and certain other claims were also made which it is unnecessary to mention for our present purposes, and the prayer was that redemption be allowed to him on payment of such sum as might be found due after making the necessary adjustments. This suit was filed in the court of the Sub-Judge. First Class, Ajmer on the 14th April, 1947. | The defendants resisted the suit. Their main contention was that they had recovered a sum of Rs. 4338/7/6 only by way of rent of the mortgaged property and that the balance of Rs. 8510/14/6 was still payable to them apart from the principal sum of Rs. 11,000/ -. The trial court passed a preliminary decree on the 20th December, 1949, and its final decree on the 14th December, 1954. The gist of this decree was (the decree itself appears at page 880 of the paper book) that a sum of Rs. 13648/3/6 was found payable by the plaintiff to the contesting defendants upto the 20th December. 1949, and that he was called upon to pay this amount into the court on or before the 14th day of June, 1955, or any later date upto which time for payment may be extended by the court for that purpose, and that on such deposit being made, the mortgagees would restore possession of the property to the mortgagor together with all the documents relating to the mortgaged property in their possession or power. It was further ordered that as for interest and recovery of rents subsequent to the 20th December, 1949, suitable orders would be passed after the mortgagor do deposit the amount due from him as adjudged hereinbefore, and a further condition in this decree was that if the aforesaid amount was not deposited within the time, originally fixed or extended the suit would stand dismissed with costs. The decree contained certain other terms also, but as nothing turns on them. , we do not consider it necessary to mention them. It is against this decree that the plaintiff filed the present appeal before the Judicial Commissioner, Ajmer, on the 13th April, 1955. On the merger of the erstwhile State of Ajmer into this State under the States Reorganisation Act, 1956, this appeal was transferred to this Court, and this is how it has come up for disposal before us. This brings us to the preliminary objection raised on behalf of the contesting defendants. That objection is that the plaintiff failed to deposit the decretal amount within the time fixed by the trial court, and, that being so, there was no subsisting decree at the date of the hearing, and, therefore, this appeal be dismissed on that ground alone. As the point was raised before us at the hearing on this appeal for the first time on the 20th January, 1964, we allowed an adjournment to learned counsel for the plaintiff in order to be able to meet it. The appeal has been placed today for hearing before us, after that date, and having heard learned counsel for both parties, we have come to the conclusion that the preliminary objection must prevail. We have been referred by learned counsel for the respondents to Umrao Singh vs. Kanwal (1) and Naguba Appa vs. Namdev (2) in support of his contention. Both these cases relate to pre-emption decrees. In the first case, the trial court decreed the claim for possession on condition of payment of Rs. 1050/- within two months of the date of the decree. The defendant being dis-satisfied with this decree went in appeal. The plaintiff deposited a sum of Rs. 145/7/- which was a part and an adequate part of the decretal amount in court on the 26th October, 1929, and prayed for delivery of possession on the 4th November, 1929. It was argued that the appeal be allowed on the short ground that the plaintiff had failed to deposit the total amount for which pre-emption had been decreed. This contention was accepted by that court as well as by the High Court in second appeal. The ratio decidendi of the decision was that the mere fact that an appeal was filed to the lower appellate court by the defendant was not to extend the period granted by the court of first instance for payment of the pre-emption money and although it was accepted that the decree under appeal was not final, it was held that this would not entitle the pre-emptor to pay the money beyond the time fixed in the decree. In the next case (Naguba Appa vs. Namdev) which was finally decided by their Lordships of the Supreme Court, the principle that the mere filing of an appeal does not suspend the decree for pre-emption and that the pre-emptor is bound to comply with the condition laid down in the decree for the deposit of the amount within the time fixed therein, was approved. It may be noticed that, in this case, the decree did not contain any default clause, but still it was held by their Lordships that that did not affect the result because of the provisions of O. 20, r. 14 C. P. C. which specifically lays down that if the purchase money and costs if any, were not paid on or before the date specified in the decree, the suit must stand dismissed with costs. It was also contended in this case that an appeal had been filed from the trial court's decree, and, therefore, the pre-emptor was justified in not depositing the amount within the time fixed by the decree. But this contention was repelled. Learned counsel for the plaintiff appellant laid considerable stress on the phrase "unless that decree is altered in any manner by the court of appeal" used by their Lordships in this connection and contended that the principle laid down therein would not apply if the decree came to be altered by the court of appeal. Learned counsel, therefore, contended that the present appeal should be heard on the merits, and it is only when we may not be prepared to alter the decree passed by the trial court in any manner that we would be justified in giving effect to the default clause. We have carefully considered this contention and do not think that it is correct. The phrase "unless that decree is altered in any manner by the court of appeal. " in our opinion pre-supposes that the appeal could be lawfully heared on the merits, and where it cannot be so heard, we cannot be compelled to wait to determine the true effect of the default clause by saying that we should first hear the appeal on the merits. It is correct that both these cases relate to pre-emption decrees, but we are of opinion that the principle which they yield is clearly applicable to the case of a mortgage decree which may contain a like default clause. We may refer at this stage to another case which went to their Lordships of the Supreme Court and which is reported as Mahanth Ramdas vs. Ganga Das (3 ). In that case, the High Court passed a peremptory order by which it fixed a specific period for payment of the deficit court-fee; but before that time had run out, the appellant had made an application for extension of the time, which came before the court for hearing after the specified period had run out. The High Court refused to enlarge the time on the ground that the appeal stood dismissed as the amount was not paid within the time fixed. In these circumstances, the question which fell for determination before their Lordships was whether the High Court was powerless to enlarge the time even though it had peremptorily fixed the period for payment of the deficit court-fee. It was held that it was not, and reference was invited to sec. 148 C. P. C. which allowed extension of time even where the original period fixed had expired and to sec. 149 which, it was stated, was equally liberal. It must be noted, however, that this was a case of an order and not a decree, and even there, an application for extension of time had been made before the period, which had been fixed for payment of the court-fees, had actually expired. This case, therefore, cannot furnish any assistance to the appellant before us, particularly as their Lordships were quite cautious to indicate that conditional decrees would occupy a different position from the procedural orders which though peremptory were passed by courts in terrorem so that dilatory litigants might put themselves in order and avoid delay. The present is clearly a case of a conditional decree. It is not for us to say whether a decree like this should or could have been rightly passed or not. For, no objection has been raised in that respect in the grounds of appeal filed on behalf of the appellant in this Court. The decree, therefore, must be accepted as it is, and that being so, it clearly called upon the plaintiff to deposit the decretal amount in the trial court on or before the 14th June, 1955, or by such time as might be extended. Neither the money was deposited within the time fixed nor was any application made for extension before the trial court. We should like to point out that no application for extension of time has been made even in this Court on behalf of the plaintiff appellant although this appeal has been pending here since November, 1956. In these circumstances, we are clearly of opinion that no question of extension of time under sec. 148 C. P. C. properly arises in the circumstances of this case. We may next generally refer to Satvaji vs. Sakharial (4) and some other cases of the same; type to which learned counsel for the plaintiff appellant invited our attention. It is unnecessary to deal with these cases at any length because, in our opinion, they have no direct bearing on the decision of the question which has been raised before us. All that these cases appear to lay down is that where the decree of a court directs a party, as a condition precedent to his recovering relief by way of possession or the like, to pay to another party a certain sum of money within a prescribed period and also provides that if the former fails to pay as directed within such period, he shall forefeit his right to recover possession of the property not from the decree of the first court but from the decree of the appellate court. As we understand these cases, it is quite clear that after the decree in the appellate court was passed, a decree in the appellate court also came into existence, the appeal having been heard on the merits, and thereafter the question arose as to from which point of time the forfeiture of the right to recover relief would come into effect, that is, whether from the date of the decree of the trial court or that of the appellate court. All that we need say in connection with these cases, therefore, is that they have no real bearing on the point that has been raised before us, and, that being so, the appellant cannot derive any help from the decision arrived in those cases The short point that has been raised before us in this case is that the plaintiff appellant having failed to deposit the decretal amount in the trial court within the time permitted by it and the result of such non-payment having been specified in the decree itself, there was no subsisting decree in his favour and that the appeal should be dismissed on that ground alone. Though we are by no means happy to have arrived at the result at which we have, we feel constrained to observe that there is no other conclusion to which we can possibly come in the circumstances of the case, particularly as no objection whatever was raised on behalf of the appellant as to this particular clause in his grounds of appeal filed in this Court. For the reasons mentioned above, we hold that the preliminary objection must prevail, and therefore, this appeal must be dismissed. Under the circumstances, we make no order as to costs in this Court. . ;