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Allahabad High Court
Lachman Singh And Ors. vs Madsudan on 17 April, 1907
Equivalent citations: (1907) ILR 29 All 481
Bench: J Stanley, W Burkitt


John Stanley, C.J. and William Burkitt, J.

1. This appeal arises out of a suit for redemption of a usufructuary mortgage of the 28th of July 1887. Both the lower Courts dismissed the plaintiffs’ claim. The mortgagors were Musammat Parbati and Musammat Khem Kunwar, and the mortgagee is the defendant respondent Madsudan. On the 20th of May 1901, the mortgagors obtained a decree for redemption of the mortgaged property subject to the payment within three months of a sum of Rs. 2,555. The decree directed that if the amount found to be due was not paid within the time prescribed, the plaintiffs’ right to redemption would be extinguished. The amount due was paid within the three months and possession of the property was restored to the mortgagors; but on appeal the decree of the Court below was modified, it being found that a sum of Rs. 3,160-10-0, and not merely Rs. 2,555, was due on foot of the mortgage. This sum was ordered to be paid on or before the 5th of March 1902, and in all other respects the decree of the 20th of May 1901 was upheld. The mortgagors failed to pay the amount so directed to be paid and did not obtain any extension of time for payment. In consequence of this the mortgagees applied for and obtained an order for recovery of possession of the mortgaged property. The sum of Rs. 2,555 which had been deposited in Court was withdrawn by the mortgagors. The suit out of which this appeal has arisen was then brought on the 10th of February 1905 for redemption; It is met by the plea that it is not maintainable in view of the fact that by the decree of the 20th of May 1901, as also of the later decree affirming it, the right of redemption became extinguished on the expiration of the time allowed for payment of the mortgage-debt and failure by the plaintiffs to redeem before the time. Both the lower Courts yielded to the plea and, we think, rightly so. We are satisfied, in view of the provisions of Sections 92 and 93 of the Transfer of Property Act, that the Court ought not to have passed an order declaring that the plaintiffs’ right to redeem should be extinguished if the mortgage debt was not satisfied within the period fixed by the decree. It is manifest from Section 92 that such an order can only be passed in the case of mortgages other than simple or usufructuary mortgages. The mortgage here was usufructuary. Section 93 provides that the defendant in a suit for redemption in case the mortgagor has failed to pay the amount ordered to be paid, may apply to the Court for foreclosure of the mortgagor’s right to redeem in all cases other than the case of simple or usufructuary mortgage, and, unless the mortgage is by conditional sale, for an order that the mortgaged property be sold, The last paragraph but one of the section provides that on the passing of any order Under the section the plaintiff’s right to redeem and the security shall both be extinguished. It is clear, we think, from the, language of this section that in the case of a usufructuary mortgage the proper and necessary order for a mortgagee to obtain, if the right of redemption is to be extinguished, is an order for sale. Such an order the mortgagees in this case did not obtain. There was, however, in the decree of the 20th May 1901, a direction that in default of payment of the mortgage debt within the time therein specified the mortgagors’ right to redeem would be extinguished. To this order no exception was taken by the mortgagors. They acquiesced in the decree, and the decree has now become final. In view of this we must hold that the plaintiffs were not entitled to succeed in a second suit for redemption even though the order passed in the former suit was not in accordance with law. We are supported in this view by the judgments of our brothers, Banerji and Aikman, in the case of Sita Ram v. Madho Lal (1901) I.L.R., 24 All., 44, The case may be a hard one on the plaintiffs, but they have themselves to blame in not taking exception to the form of the decree passed in the former suit. We dismiss the appeal with costs.

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