SAMBHUNATH AUDDY Vs. TARAK NATH AUDDY

JUDGEMENT

(1.) This is an appeal against an order passed by Ray, J. on May 19, 1964 whereby the learned Judge has dismissed an application made by the plaintiff appellant for amongst others the following reliefs:

(2.) The short facts in this case are as follows: One Anandalal Auddy was the owner of premises Nos. 30, 32, 34 and 36 Ramdhan Mitra Lane in the city of Calcutta. On the 13th August, 1934 he created an equitable mortgage in respect of his properties in favour of one of his sons, Tarak N(sic) Auddy, the respondent No. 1 in this appeal. On the 11th December, 1937 the said Anandalal Auddy executed a deed of trust under which he appointed his wife Padmabati Dassi as trustee. The proper-t ties were divided into five lots. Padmabati was to enjoy the income for life and after her death the trust was to come to an end and of each of the said lots the five sons including Tarak and Sambhu was to get one lot absolutely. The trust was made subject to payment of the mortgage in favour of Tarak On the 1st October, 1941 Anandalal died. Some time in 1946, Tarak filed a suit against Padmabati for enforcement of his mortgage being suit No. 598 of 1946 (Tarak Nath Auddy v. Padmabati Dassi). In that suit, a final decree for sale of the mortgage property was made on the 20th September 1948. On the llth October, 1948 Padmabati died. Thereupon, the trust came to an end and each of the five sons became owner of his respective lot. Sambhuuath became the owner of No 30B Ramdhan Mitra Lane, while Tarak became the owner of 34 Ramdhan Mitra Lane. Sambhunath thereupon offered to redeem his lot on payment of a proportionate share of the mortgage debt, on the ground that the mortgagor, having become a part owner of the mortgaged property the integrity of the mortgage had been broken. It is stated, however, that Tarak refused to accept payment He, on the other hand, made an application for execution of the final decree in the said mortgage suit. On the 80th August, 1955 Sambhunath filed a redemption suit against Tarak claiming to redeem premises No. 30B, Ramdhan Mitra Lane, upon payment of a proportionate share of the mortgage debt. This was numbered as Suit No. 2477 of 1966 (Sambhunath Auddy v. Tarak Nath Auddy and Ors. On the 31st August, 1956 Sambhunath made an application in Suit No. 2477 of 1955 for stay of the execution of the decree in Suit No. 598 of 1946. What happened was that Tarak had applied for execution by sale of the said premises No. 30B Ramdhan Mitra Lane. On the 28th November, 1955 P. B. Mukharjj, J. made an order that the reference for sale in Suit No, 598 of 1946 be proceeded with but the report of the Registrar of this Court therein will not be confirmed till the disposal of the Suit No. 2477 of 1955. The learned Judge gave certain directions as to the hearing of the suit. As there was no stay oi sale in execution of the mortgage decree, premises No. 30B Ramdhan Mitra Lane was sold by the Registrar and was purchased by Tarak on the 5th January, 1957. On the 20th May, 1957 a decree was passed in suit No. 2477 of of 1955. It was declared that Sambhunath was entitled to redeem the mortgage in respect of premises No. 30B Ramdhan Mitra Lane. The decree inter alia provided as follows:-- "And it is hereby further ordered and decreed (i) that the plaintiff do pay into Court to the credit of his suit within two weeks of the date of such countersignature or any later date upto which time for such payment may be extended by the Court, such sum as may be found due and the taxed costs of the suit awarded to the defendant Tarak Nath Auddy. (ii) that on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due in respect of such costs of the suit as also that the costs in Suit No. 598 of 1946 as aforesaid and such costs, charges and expenses as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of Order XXXIV of the First Schedule to the Code of Civil Procedure 1908, the defendant Tarak Nath Auddy shall bring into Court all documents in his possession or power relating to the mortgaged property in so far as it relates to the plaintiff's share is concerned in the plaint mentioned and all such documents in respect of the plaintiff's share in the premises No. 30B, Ramdhan Mitra Lane be delivered over to the plaintiff or to such person as he appoints and the defendant Tarak Nath Auddy shall if so required reconvey or retransfer the said property in so far as it relates to the share of the plaintiff (hereinafter referred to as the said portion of the property) free from the said mortgage and clear of and from all incumbrances created by the defendant Tarak Nath Auddy or any person claiming under him or any person under whom he claims and shall, if so required deliver upto the plaintiff quiet and peaceable possession of the said portion of the property. And it is hereby further ordered and decreed that in default of payment as aforesaid the defendant Tarak Nalh Auddy may proceed with the confirmation of sale and take all steps in suit for realisation of costs in the said suit No. 598 of 1946." On the 14th October, 1961 Sambhunath by a conveyance sold his right, title and interest in premises No. 30B Ramdhan Mitra Lane to his wife Sm. Narayani Auddy. On the 8th January, 1968 the Registrar's report as to the amount payable for redemption of the said property was countersigned by the Court. Rs. 1286.55 nP. was found to be payable on account of the mortgage debt, together with Rs. 879.87 for costs; two sums of Rs. 728.78 and Rs. 170 were found payable by Tarak to Sambhunath. On the 22nd January, 1963 the time to make payment under the said decree expired. On the 21st April, 1964 an application was made by Tarak for confirmation of sale of the said property made in Suit No. 598 of 1946. On the 29th April, 1964 Sambhunath made an application asking for the reliefs abovementioned, which application was dismissed by Ray. J. on the 14th August, 1964. The learned Judge was not given any judgment. It is against this order that this appeal has been preferred. We are told the the learned Judge was impressed by the argument advanced on behalf of the respondent Tarak that the appellant Sambhunath, having transferred his right, title and interest in premises No. 30B Ramdhan Mitra Lane to his wife, could no longer maintain the application. Mr. Gouri Mitter appearing on behalf of the appellant has taken several points in connection with the appellant's locus standi to apply for execution of the decree, which are as follows:

(3.) Assuming that the appeilanl has got the right to apply for execution of the decree in spite of the conveyance of his right, title and interest in the property in favour of his wife, the next point is as to whether he is entitled to ask for extension of time for payment of the money. Upon this point, Mr. Mukherjee appearing on behalf of the respondent No. 1 has argued that, by the decree dated 20th May, 1957 the appellant was called upon to pay into Court the amount due within two weeks of the date of the countersignature by the Court of the report of the Registrar, which event took place on the 8th January, 1963 or upon such date as may be extended by the Court. He argues that the appellant did not pay within two weeks and did not ask for any extension of the time for over a year, and the default clause operated and Tarak had asked for confirmation of sale and is entitled loan order of confirmation. In fact, on the same date after dismissing the appellant's application for extension of time to pay and other reliefs, the learned Judge dealt with the application of Tarak for confirmation of sale and has made an order confirming the sale in Suit No. 598 of 1940, Against that order also an appeal is ponding which is next in our list for disposal. He argues that after the lime to pay has expired and the default clause had operated. no further extension of time can he granted and the order for confirmation of sale was rightly made and the prayer for extension of time to pay in Suit No. 2477 of 1955 has been rightly rejected.