Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Shashtri Das Dutt vs Ujir Ali Khan And Ors. on 14 January, 1913
Equivalent citations: 18 Ind Cas 357
Bench: H Carnduff, Chapman


1. The appellant was the purchaser at a sale in execution of a mortgage-decree. He sued the respondent for possession of the property and, in the alternative, he asked for the refund of the purchase money, if possession was not delivered to him. He obtained a decree for possession in the Munsif’s Court. On appeal, the District Judge modified that decree. He directed that the respondent should have an opportunity to redeem the mortgage, one month being given for that purpose and that, in default, the appellant was to recover possession.

2. The date of this decree was the 23rd January 1908. On the 4th December 1909, the appellant prayed for execution of his decree and for possession of the property. Thereupon, the respondent offered to redeem and tendered the money. The Munsif rejected the tender and declared that the appellant was entitled to possession. There was an appeal to the District Judge and, in that appeal, the District Judge held that the decree was a mortgage decree and that the respondent had the right to redeem at any time before the order for foreclosure was passed. He, therefore, passed an order directing that the tender should be accepted. Against this order of the District Judge the present appeal has been preferred to this Court.

3. It is first contended that the District Judge erred in holding that the decree was a mortgage decree. We are of opinion, however, that having regard to the fact that the right of the respondent to redeem was expressly and in terms recognised by the decree, the District Judge was right in treating the decree as a mortgage decree, although it was defective in form. It was not merely a conditional decree for ejectment. It is then contended that, even if it was a mortgage decree, the respondent could only redeem on satisfying the Court that he had good cause for the delay. This question is concluded by numerous rulings of this Court. In the Full Bench case of Bibi Jan Bibi v. Sachi Bcwah 31 C. 863; 8 C.W.N. 684 it was held that a mortgagor judgment-debtor is entitled to stop the sale of the mortgaged property in execution of a mortgage decree by payment of the debt before the sale actually takes place, although an order absolute for sale may have already been passed. The present case is much stronger than the case referred to. In this case, no order absolute was made or even asked for. It is then suggested that the same principle does not apply to a case for foreclosure. That also is concluded by authority. We need only refer to the case of Somesh v. Ram Krishna Chowdhry 27 C. 705; 4 C.W.N. 699 where it was laid down that until an order for foreclosure absolute in proper form is made under Section 87 of the Transfer of Property Act, the mortgagor can, upon a proper application, redeem the mortgaged property. There is no reason to interfere with the order passed of the District Judge. The appeal is accordingly dismissed. We make no order as to costs.

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