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Madras High Court
Venkata Narayana Reddi vs Papayya on 23 August, 1868
Equivalent citations: (1898) 8 MLJ 205


1. In a case like this a second order or order absolute, on application by the mortgagee was imperative under the Transfer of Property Act to enable the plaintiff to obtain possession of the property. On such an application being made by the mortgagee, the mortgagor (defendant) is entitled under the proviso to Section 87 of the Act to obtain an extension of time for payment of the money on showing good cause. We cannot agree with the appellant’s contention before us that the mortgagor cannot apply for such extension after the expiry of the time fixed for payment in the first order inasmuch as the mortgagee himself could apply for an. order absolute only after the expiry of such time. It is next contended by the appellant that even if the mortgagor could ask for an extension after the expiry of the time fixed for payment in the first order, he could not do so after the passing of the final order, and that such final order was in fact passed in the present case. ..That order was, however, passed without notice to the mortgagor (defendant) who, therefore, had no opportunity of availing himself of the provision made for his benefit in the latter part of Section 87, by showing cause and obtaining an extension of time before the final order was passed and we think that as the mortgagor, as soon as he became aware of the ex parte order, applied to have it set aside and the order was thereupon set aside, it was competent to the Court to extend the time for payment.

2. The order of the District Judge was therefore right, and we dismiss this appeal with costs.

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