Citation Codes

Equivalent Citations

citation codes

Case Number

Application No. 181 of 1943

Judges

Misra
Kaul
Kidwai, JJ.

Acts

Transfer of Property Act and the Code of Civil Procedure. Chapter III, Agriculturists, Relief Act,
Agriculturists' Relief Act by virtue of Section 27 of that Act,
provisions of Section 16 of the Agriculturists' Relief Act,
Section 148 and O. 34, Rr. 2(2), 4(2) and R. 7(2) of the CPC
Agriculturists' Relief Act. Any provision of the Code
provisions of O. 34 apply.26. Act XXVII [27] of 1934
Section 12 of the U.P Agriculturists' Relief Act,
O. 34, R. 7(2) of the CPC.31. Section 148 of the CPC
Section 2(9) of the CPC. Order 20, R. 3 of the CPC,
2):)Section 27 of the Agriculturists' Relief Act
Section 12 of the Agriculturists' Relief Act,
Agriculturists' Relief Act. Sub-rule (2) of R. 7
Section 16 of the Agriculturists' Relief Act
provisions of the Agriculturists' Relief Act,
Agriculturists' Relief Act comprises Ss. 9
Act XXVII [27] of 1934.21. Section 27
3, 27, Agriculturists' Relief Act,
Agriculturists' Relief Act
Sections 13, 14, 15 and 16
TRANSFER OF PROPERTY ACT
S. 12 is made. Section 17

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Smart Summary

Full Bench Opinion — Summary

Factual and Procedural Background

The Full Bench was asked to decide two referred questions concerning the applicability of certain rules in Order 34 of the Code of Civil Procedure (CPC) to proceedings under Chapter III (Ss. 9–27) of the Agriculturists' Relief Act (Act XXVII of 1934), and whether time fixed by an order under Section 16 of that Act for payment of redemption money could be extended by analogy or under Ss. 148 or 151 CPC.

The factual matrix that produced the reference is as follows (as described in the opinion): Petitioners applied for redemption under Section 12 of the Agriculturists' Relief Act. On 31 August 1942 the Munsif, Rae Bareli, ordered redemption on payment of Rs. 486-6-0 within six months. On 27 February 1943 the petitioners deposited Rs. 340 in Court and applied for extension to pay the balance; notice was served on the opposite party and the application was listed for 27 March 1943. On 16 March 1943 the petitioners deposited the balance. At the hearing the opposite party contended that, under the Agriculturists' Relief Act, payment must be made within the period fixed and, if not, the redemption application must be dismissed and the Court has no power to extend time. The trial Court accepted that contention and dismissed the application. An appeal to the District Judge, Rae Bareli, held that O.34, R.7 CPC applied by virtue of Section 27 of the Act and that the Court could extend time, but found no good cause for extension and dismissed the appeal. The petitioners then moved in revision to the Chief Court of Avadh. Doubts arose as to earlier decisions (including Misri Lal and Iqan Husain), and the matter was referred to a Full Bench which framed the two questions now answered.

Legal Issues Presented

Whether the provisions of Order 34, rr. 7(2) and 9 of the Code of Civil Procedure apply to a case where an order allowing redemption under Section 16 of the Agriculturists' Relief Act has been made and the mortgage money has not been deposited within the time fixed by the Court.
If those provisions do not apply, whether the time fixed by an order under Section 16 of the Agriculturists' Relief Act for payment of the redemption money can be extended either on the principles underlying those provisions or under Sections 148 or 151 of the CPC.

Arguments of the Parties

Petitioners

The petitioners instituted proceedings under Section 12 of the Agriculturists' Relief Act seeking redemption.
They deposited Rs. 340 on 27 February 1943 and applied to the Court for an extension of time to pay the balance (i.e., they sought an extension so as to effect redemption under the earlier order).
They subsequently deposited the balance on 16 March 1943 (this fact was placed before the Court during proceedings).

Opposite Party

The opposite party contended that the procedural provisions of the Agriculturists' Relief Act differ from the corresponding provisions in O.34 CPC and that where redemption is ordered on payment within a fixed time, the payment must be made within that time.
If payment is not made within the period fixed by the redemption order under Section 16, the application for redemption must be dismissed and the Court has no authority to extend the time in such cases.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in the Opinion
Iqan Husain v. Sahu Babu Ram, A.I.R. (26) 1939 All. 88 : I.L.R. (1939) All. 194	Held that the provisions of O.34, Rrs. 7 and 9 CPC apply to an application under Section 12 of the Agriculturists' Relief Act.	The Full Bench observed that Iqan Husain was the first case to take this view but criticized that decision for not sufficiently recognizing material differences between Chapter III of the Agriculturists' Relief Act and O.34 CPC; the Bench doubted the correctness of applying O.34 in toto to Chapter III.
Misri Lal v. Gajodhar, 1943 O.W.N. 347 : A.I.R. (30) 1943 Oudh 433	Held that O.34, R.7 CPC is applicable to proceedings under Section 12 and that the Court has power to extend the time fixed for payment of the amount found due.	The Full Bench recorded that Misri Lal followed Iqan Husain and took the position that O.34, R.7 applies; however the Bench expressed doubt as to the correctness of that view and declined to follow it for the reasons given in its analysis.
Raja Ram v. Muhtaq Husain (also cited as Baja Ram v. Mushtaq Husain), 18 Luck. 183 : A.I.R. (29) 1942 Oudh 391	Decision treated as approving Iqan Husain and applying O.34 provisions (including R.9) to proceedings under Chapter III; held that R.9 can be applied to inquiries analogous to R.7 inquiries.	The Full Bench discussed this decision and noted that it supported the application of O.34 rules; nonetheless the Bench rejected the view that Section 27 "brings in the whole of O.34" and declined to apply those rules where core features (e.g., preliminary decree and the power to pass a final decree under O.34) are absent in Chapter III.
Ram Sunder v. Paras Ram, 1945 O.W.N. 416 : A.I.R. (33) 1946 Oudh 88	Held that where a decree for redemption under Section 12 is conditional and payment is not made within the time fixed, the decree is not extinguished and the right of redemption subsists; the Court retained jurisdiction to amend the decree (the decision cited Raja Ram and Misri Lal).	The Full Bench quoted this view as part of the line of authorities taking a broad view that O.34 procedures (and relief analogous to them) may be available; the Bench, however, ultimately disagreed with extending O.34 R.7(2) and R.9 to Chapter III by analogy or partial importation.

Court's Reasoning and Analysis

The Full Bench proceeded by examining the scheme and language of Chapter III (Ss. 9–27) of the Agriculturists' Relief Act and comparing it to the procedure embodied in Order 34 of the CPC (which governs ordinary suits relating to mortgages). The analysis contains the following main steps and conclusions (stated in the language of the opinion):

Scope and scheme of Chapter III: Chapter III is a comprehensive, but narrowly focused, statutory procedure for redemption of mortgages by agriculturists. It provides specific provisions—forms, procedure, jurisdiction, appeals, limitation, execution—culminating in Section 27 which states that provisions of the CPC "so far as they can be made applicable" shall be followed in proceedings under Chapter III. The Bench emphasized that Chapter III lays down detailed, and sometimes materially different, rules from O.34 CPC.
Inapplicability of particular O.34 provisions where Chapter III provides otherwise: The Court held that where Chapter III expressly provides for a matter, that provision governs and the corresponding rule in the CPC does not apply. Specifically, Section 16 prescribes the limited forms of orders that a Court can make on an S.12 application (reject, order deposit of balance within a fixed period and reject if balance not deposited, or order redemption if deposit sufficient or balance paid within time). There is no provision corresponding to O.34, R.8(3) (final decree debarring redemption) or to R.7(1)'s grant of rights to the mortgagee to seek a final decree. Consequently the Court found O.34, R.7(1) inapplicable to Chapter III.
O.34, R.7(2) (power to extend time on good cause shown) cannot be applied in part while R.7(1) is inapplicable: The Bench reasoned that R.7(2) is intrinsically linked to R.7(1) (and the preliminary/final decree structure of an ordinary suit). Because Section 16 forecloses the possibility of granting the mortgagee a right to a final decree and because Chapter III contemplates orders (not preliminary decrees amenable to later amendment in the way O.34 prescribes), O.34, R.7(2) cannot be imported selectively.
Judgment finality and amendment constraints under O.20, R.3 CPC: The Court observed that an order under S.16 is a "judgment" within the meaning of Section 2(9) CPC, and that Order 20, Rule 3 CPC provides that a judgment, once signed, cannot be altered save by review or under Section 152 (or on review). Since Section 16 gives no power (express or implied) to extend the time once an order fixing time is made, allowing such an extension would conflict with O.20, R.3 as applied to proceedings under Chapter III (by virtue of Sections 3 and 27 of the Act). Thus the omission of an extension power in Section 16 must be given effect.
Section 27 cannot be used to pick and choose parts of the CPC: The Bench emphasized that Section 27 allows the CPC to be followed "so far as they can be made applicable" but does not authorize courts to amend CPC provisions or to apply parts of a rule divorced from those provisions which constitute its context and essential machinery. It is not permissible to detach sub-rules or principles from their connected statutory context and apply them where core components are absent.
Analogy to O.34 and the principles underlying R.7(2) insufficient: The Court rejected the argument that the principle of R.7(2) (extension on good cause) could be applied by analogy to S.16. It found no express or necessarily implied power in S.16 to extend time; on the contrary the statutory language prescribes rejection if the balance is not deposited within the fixed time, and the Bench treated the omission of an extension power as deliberate.
Sections 148 and 151 CPC do not furnish a solution: The Bench held that Section 148 (power to enlarge time where period is fixed by the Code) applies only to acts prescribed by the Code and not to periods fixed by other statutes; Section 151 (inherent powers) likewise cannot be used to extend a period fixed by Section 16 of the Agriculturists' Relief Act where the statute itself provides the procedure and omits such power. The Court stressed legislative intent and deliberate omission as decisive.
Assessment of prior decisions: The Bench examined earlier cases (Iqan Husain, Raja/Baja Ram, Misri Lal, Ram Sunder) that had applied O.34 provisions to Chapter III or treated the provisions as analogous. It summarized three grounds on which those cases relied (to avoid one-sided jurisdiction, to prevent multiplicity of suits, and the language of S.27). The Bench rejected these as either overlooking the statutory language or being insufficient to extend Chapter III beyond what its language warrants. It concluded that the analogy or partial importation of O.34 R.7(2) or R.9 into Chapter III is impermissible when core contextual features are absent.

Holding and Implications

Both referred questions are answered in the negative.

Direct holding (as expressed in the opinion):

The provisions of O.34, R.7(2) and R.9 CPC do not apply to proceedings under Chapter III of the Agriculturists' Relief Act (i.e., to an order allowing redemption under Section 16 where payment of the redemption money has not been deposited within the time fixed by the Court).
The time fixed by an order under Section 16 of the Agriculturists' Relief Act for payment of the redemption money cannot be extended either by applying the principles underlying O.34, R.7(2) or by invoking Sections 148 or 151 CPC. The omission of any power to extend the time in Chapter III is treated as deliberate by the legislature.

Consequences and practical effect on the parties (as stated in the opinion):

If an applicant entitled to redeem is ordered to deposit a balance within a fixed period under Section 16 and fails to deposit the balance within that period, the statutory mandate is that the Court shall reject the application; there is no statutory power to extend the time.
Chapter III provides orders (including orders allowing or rejecting redemption) and not preliminary decrees in the sense contemplated by O.34; therefore mechanisms tied to preliminary/final decree structures (such as granting the mortgagee a right to apply for a final decree or an extension of time under O.34, R.7(2)) cannot be applied to Chapter III proceedings.

The Full Bench concluded its reasons by recording that the referred questions were answered and the reference was accordingly disposed of. (Final line in the opinion: "Reference answered.")

D.R.R

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Jagjit Singh v. Sankatha Singh

1. The two questions which have been referred to the Full Bench are as follows: (1) Whether the provisions of O. 34, R. 7(2) and R. 9 of the CPC, apply to a case in which an order allowing redemption of a mortgage has been made under Section 16 of the Agriculturists' Relief Act and the mortgage money has not been deposited within the time fixed by the Court, and (2) if the said provisions do not apply can the time fixed by an order under Section 16 of the Agriculturists' Relief Act, for payment of the redemption money be extended either on the principles underlying those provisions or under Sections 148 or 151 of the CPC? The facts which led to this reference to a Full Bench are briefly as follows: The petitioners made an application for redemption of a mortgage under Section 12 of the Agriculturists' Relief Act. On 31st August 1942, Mr. R.K Sircar, Munsif Rae Bareli, passed an order for redemption on payment of Rs. 486-6-0 within six months of the date of the order. On 27th February 1943, the petitioner deposited Rs. 340 in the Court and applied for extension of time to pay the balance. Notice of the application was issued to the opposite party. The application was fixed for hearing on 27th March 1943.

2. On 16th March 1943, the petitioners deposited the balance of the redemption money. The case was adjourned to 17th April 1943. When it was taken up for hearing it was contended on behalf of the opposite party that under the provisions of the Agriculturists' Relief Act, which were different from the corresponding provisions in O. 34 of the CPC, if redemption is allowed on payment of a certain sum within the time fixed, the payment must be made within that time. If it is not made within the time allowed by the order of redemption, the application for redemption must be dismissed. The Court has no authority to extend the time in such cases. The trial Court accepted this contention and dismissed the application for redemption because the money had not been deposited within the time fixed and it had no power to extend the time originally fixed for payment.

3. An appeal was preferred against this order to the District Judge, Rae Bareli. He was of opinion that the Court could extend the time under the provisions of O. 34, R. 7 of the CPC, which applied to proceedings under the Agriculturists' Relief Act by virtue of Section 27 of that Act, but in as much as no good cause for non-payment of the balance within the time fixed was shown, the application was rightly rejected. The appeal was consequently dismissed. The petitioners thereupon went up in revision to the Chief Court of Avadh. The matter came up for consideration before one of us. In the course of argument before our learned brother reference was made to the case of Misri Lal v. Gajodhar, 1943 O.W.N 347 : (A.I.R (30) 1943 Oudh 433) where it was held that the provisions of O. 34, R. 7 of the CPC, were applicable to proceedings under Section 12 of the Agriculturists' Relief Act, and the Court has got the power to extend the time fixed for payment of the amount found due under the mortgage. Our learned brother entertained doubt as to the correctness of the decision in Misri Lal's case, 1943 O.W.N 347 : (A.I.R (30) 1943 Oudh 433) and having regard to the importance of the questions raised, referred the appeal for decision to a Bench. The Bench also enter, tained doubt as to the correctness of the view taken in the case of Misri Lal as also in the case of Iqan Husain v. Sahu Babu Ram, A.I.R (26) 1939 ALL. 88 : (I.L.R (1939) ALL. 194) and certain cases in which Iqan Husain's case, A.I.R (26) 1939 ALL. 88 : (I.L.R (1939) ALL. 194) was followed. With a view to have a final decision on the points under consideration, it referred the two questions noted above to a Full Bench.

4. Of the cases to which reference was made during the course of argument before us Iqan Husain v. Sahu Babu Ram, A.I.R (26) 1939 ALL. 88 : (I.L.R (1939) ALL. 194) was the first the view was taken that the provisions of O. 34, Rr. 7 and 9 of the CPC, apply to an application under Section 12 of the Agriculturists' Relief Act. In that case a usufructuary mortgage was created before the Agriculturists' Relief Act was passed. The period fixed was ten years. Under the terms of the deed, the mortgagee was to appropriate all the profits for ten years in full satisfaction of his entire mortgage money, principal and interest, and on 30th June 1937 (the mortgage was created in 1335-F 5th July 1927) the property was to be returned to the mortgagor free of any encumbrance or charge under the mortgage. An application under Section 12 of the Agriculturists' Relief Act was made on 24th July 1937. No deposit was made because the entire mortgage money had been fully paid up. It was contended on behalf of the mortgagee that an application for redemption of a mortgage like this could not lie under Section 12 of the Agriculturists' Relief Act. The contention was accepted by the learned Civil Judge before whom the case came up for hearing. His grounds were that Section 12 of the Act does not apply to the case when nothing is due to the mortgagor on account of the mortgage money, and when no deposit has been made. He further opined that the form prescribed under the rules of the Act must be used for the application, and that form shows that mention should be made of the amount of the money deposited for his redemption and therefore some deposit must be made. The view which the learned Judge took was that the Act was defective, and although mortgages of this nature were dealt with by Section 11, the Act had omitted to deal with them in S. 12. Bennett J. who pronounced the judgment of the Bench, and with whom Verma J. agreed, held that S. 12 was intended by the Legislature to be a residuary section to S. 11 and to embrace all mortgages by an agriculturist now dealt with in S. 11. An application under S. 12 for redemption of a usufructuary mortgage made prior to the Agriculturists' Relief Act, which provides that the usufruct for the period of the mortgage is to discharge the principal and interest, is competent even though no deposit as required by S. 12 is made by the applicant along with the application.

5. It will be seen that the first of the two questions which has been referred to the Full Bench did not directly arise in that case. The learned Judge however made the following observations. (Page 89 of the report (Column 2):)

“Section 27 of the Agriculturists' Relief Act states that the provisions of the Code of Civil Procedure in regard to suits shall be followed, so far as they can be made applicable, in all proceedings under Chap. III. Accordingly O. 34, Rr. 7 and 9 will apply to an application under S. 12 and where on taking of accounts the Court finds that nothing is due from the applicant the Court will pass a decree for possession in his favour and may award him any amount found due to him.”

6. Chapter III, Agriculturists' Relief Act comprises Ss. 9 to 27. It is headed “mortgages and their redemption.” Section 9 gives the form of a possessory mortgage which an agriculturist can create after the passing of the Act. Section 10 gives the Collector jurisdiction to deal with redemption of cases under chap. III where the principal money secured does not exceed Rs. 500. Section 11 prescribes the procedure for recovery of possession of mortgaged property by a mortgagor under a possessory mortgage created after the passing of the Act. Section 12 is a general section which gives the mortgagor or other person entitled to institute a suit for redemption, irrespective of whether the mortgage was made before or after the passing of the Agriculturists' Relief Act, a right to redeem his mortgage by making an application instead of instituting a suit as he would have to do under the ordinary law. Sections 13, 14, 15 and 16 lay down the procedure to be followed if an application contemplated by S. 12 is made. Section 17 lays down when interest shall cease to run on the mortgage debt. Section 18 empowers the Court to put the mortgagor in possession after redemption has been ordered. Under S. 19 if the application for redemption is rejected the deposit made by the mortgagor has to be returned to him. Section 20 protects such a deposit from being attached in enforcement of any claim against the applicant other than a claim arising out of the mortgage. Section 21 lays down that the terms “mortgagor” and “mortgagee”, as used in chap. III, includes respectively the successors in title of the original mortgagor and the original mortgagee. Section 22 deals with the investment of powers on Assistant Collectors and transfer of proceedings. Under this section the Provincial Government may empower any Assistant Collector of the first class to exercise the powers of a Collector under Chap. III. Section 23 relates to appeals in cases arising under this Chapter. Section 24 limits the application of this Chapter to cases in which the applicant is an agriculturist on the date of the application and the mortgagor was an agriculturist at the time of the mortgage. Section 25 bars a suit for any relief which can be obtained by an application under Chap. III. Section 26 deals with the rule of limitation applicable to applications and appeals under this Chapter. The last section of the Chapter, S. 27, lays down that provisions of the Code of Civil Procedure so far as they can be made applicable shall be followed in all proceedings under Chap. III. It further provides that all orders passed under chap. III shall be executed in the manner prescribed for execution of Civil Court decrees.

7. It will thus be seen that Chap. III lays down a comprehensive set of rules for redemption of mortgages. It contains rules relating to jurisdiction of Courts and the manner in which an application for redemption of a mortgage can be made under this Chapter. It gives detailed directions as to the procedure to be followed in proceedings under this Chapter, including rules relating to appeals and to the law of limitation applicable to cases arising under the said Chapter. But as the whole of the procedural law which must be applied to a proceeding could not be compressed within the few sections contained in this Chapter, it closes with S. 27 which lays down that the rules of the Code of Civil Procedure, so far as they can be made applicable, shall be followed in proceedings under this Chapter.

8. It is obvious, therefore, that wherever provision has been made for any matter in any of the sections contained in this Chapter, such matter will be governed by those rules and not by the corresponding provisions in the Code of Civil Procedure. With the greatest respect it appears to us that the learned Judges responsible for the decision in Iqan Husain's case, A.I.R (26) 1939 ALL. 88 : (I.L.R (1939) ALL. 194) omitted to take into consideration the fact that the scheme of the procedure applicable to redemption of mortgages under chap. III, Agriculturists' Relief Act, is materially different from that prescribed by O. 34 of the CPC.

9. The general law applicable to mortgages and the procedure relating to suits for enforcement of the rights and obligations that arise between mortgagors and mortgagees is contained in the Transfer of Property Act and the Code of Civil Procedure. Chapter III, Agriculturists, Relief Act, contain special provisions relating to redemption of mortgages applicable to a particular class of mortgagors. These apply only where the mortgagor is an agriculturist. The Chapter, it is well to remember, is confined to redemption of mortgages and makes no provision for their foreclosure or for sale of property in enforcement of mortgages. The scheme of the rules in chapter III, Act 27 of 1934, is essentially different from that laid down in the Code of Civil Procedure for suits and mortgages. It is a cardinal rule applicable to actions for redemption that they must be so constituted that complete justice may be done to everybody including persons whose foreclosure may be necessary to work out the equities of the case. Accordingly it is provided by O. 34, R. 1 of the CPC that in suits relating to mortgages (irrespective of whether they be suits for redemption or for foreclosure or sale) all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties. The other rules in O. 31 have been framed accordingly.

10. Under the general law, as already pointed out, the suit has to be so constituted as to do complete justice to everybody who has an in terest in the mortgage security or in the right of redemption. The scope of chap. III is much narrower. It deals only with redemption of mortgages. It is not intended by the provisions contained in that Chapter that a proceeding initiated by S. 12 should deal with all the matters that would arise and be determined in an ordinary suit for redemption.

11. Under the Code Civil Procedure in a suit for redemption just as in suits for foreclosure or sale there should first be a preliminary decree. The preliminary decree should order that an account be taken of what is due to the defendant at the date of the decree and declare the amount so due. It should further direct that if the plaintiff paid this amount on or before such date as the Court might fix within six months and thereafter pay such amount as may be adjudged due in respect of subsequent cost, charges and expenses, together with subsequent interest on such sums, the defendant shall deliver up to the plaintiff all documents relating to the mortgaged property, re-transfer the property if so required and put him in possession. If the payment of the amount found or declared due by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay within such time as the Court might fix, the amount due in respect of subsequent costs, charges and interest, the defendant becomes entitled to apply for a final decree. A reference to R. 8(3) of O. 34 will show that where payment in accordance with sub-r. (1) of that rule is not made the Court shall on an application made by the defendant, (that is the mortgagee) pass a final decree declaring that the plaintiffs and all persons claiming under him are debarred from all right to redeem the mortgaged proparty and also if necessary ordering the plaintiff to put the defendant in possession of the mortgaged property. Or, in an appropriate case, it might pass a final decree that the mortgaged property, or a sufficient part thereof, be sold and the proceeds of the sale be paid into Court and applied in payment of what is found due to the defendant and the balance if any be paid to the plaintiff or other person entitled to receive the same.

12. Obviously in view of the provisions of Section 16 of the Agriculturists' Relief Act, which prescribes the general procedure applicable to a proceeding initiated by Section 12 of the Act, there can in such a proceeding be no order giving the opposite party the right to apply for an order corresponding to final decree as contemplated by O. 34, R. 8(3) of the CPC, debarring the mortgagor from all right to redeem. If the applicant fails to deposit the amount directed by the Court, all that it can do is to reject the application. There can be no doubt that the provision contained in O. 34, R. 7 which empowers the Court to make a direction in the preliminary decree that if payment of the amount found or declared due is not made, the defendant will have the right to apply for a decree debarring the mortgagor's right to redeem, cannot apply to proceedings under chap. III, Agriculturists' Relief Act.

13. Under O. 34, R. 7(2) the Court is empowered on good cause shown, and upon terms to be fixed by it to extend the time fixed for payment for the amount found or declared due or of the amount adjudged due in respect of subsequent costs, charges and interest. The Court can extend the time fixed for payment from time to time and at any time before the passing of a final decree for foreclosure or sale. No such pro vision or a provision corresponding to it giving the power to extend the time fixed for payment is found in S. 16 or any other section contained an Chap. III, Agriculturists' Relief Act.

14. If we turn to S. 16 we find that according to the procedure laid down there:

(a) The Court shall hold an inquiry to determine whether the applicant is entitled to redeem the mortgage and whether the money deposited by him is sufficient; (b) if the Court finds that the applicant is not entitled to redeem, it shall reject the application; (c) if it finds that the applicant is entitled to redeem, but must pay a larger amount than that deposited by him, the Court shall order the applicant to deposit the balance within a fixed period, and if the applicant fails to deposit the said balance, the Court shall reject the application, and (d) if the Court finds that the applicant is entitled to redeem and that the amount deposited by him was sufficient, or if it was not sufficient, the applicant has deposited the balance within the time fixed, it shall order that the mortgage be redeemed. Chapter III does not contemplate the passing of any decree. It is true that orders passed under that chapter are executable in the manner prescribed for execution of civil Court decrees, nonetheless they are orders, and hence no questions of passing a preliminary decree can arise. All that can be passed under S. 16 is an order, either allowing redemption or rejecting the application for redemption. Order 34, R. 7(2), therefore, cannot as a whole apply to an order passed under S. 16.

15. We shall next consider the question whether the principle of the rule of law enacted in O. 34, R. 7(2) can by analogy be applied to proceedings under S. 16. Section 16 gives neither expressly nor by necessary implication any power to the Court to extend the time fixed for payment of the redemption money. It expressly lays down that if the applicant fails to deposit the balance, the Court shall reject his application. Accordingly in a case where the applicant is entitled to redeem, but must pay a larger amount than that deposited by him, the order of the Court shall more or less run on the following lines:

“The applicant is entitled to redeem the mortgage on payment of Rs. … He has deposited only Rs. … He must, therefore, in order to redeem the mortgage pay Rs. … more. This he shall do within… months. If the applicant falls to deposit the said balance as directed, the application shall be rejected (or the application shall stand rejected.)”

16. Such an order will be a judgment within the meaning of that expression as defined in Section 2(9) of the CPC. Order 20, R. 3 of the CPC, provides that a judgment shall not, after it is once signed, be altered or added to save as provided by S. 152 or on review. It is clear, therefore, that once an order, such as is mentioned above, is passed, it cannot be altered or added to. To hold that the Court can extend the time fixed for payment (in the absence of any such power conferred upon it expressly or by necessary implication) would be to go against the provisions of O. 20, R. 3 of the CPC, which by virtue of 3, 27, Agriculturists' Relief Act, applies to proceedings under chap. 3 of the Act.

17. Iqan Husain's case (A.I.R (26) 1939 ALL. 88 : I.L.R (1939) ALL. 194) was followed by a Bench of the late Chief Court of Oudh in Baja Ram v. Mushtaq Husain, 18 Luck. 183 : (A.I.R (29) 1942 Oudh 391). It appears that in that case which arose under Section 12 of the Agriculturists' Relief Act, the trial Court passed a decree for redemption and also a decree for repayment of a large sum of money to the applicants by the opposite parties. In first appeal some modifications were made in the decree and the case was remanded for settling accounts in accordance with certain directions given in the appellate Court judgment. The decree of the trial Court as regards over payment by the applicant was maintained with some modifications. The matter was taken up before the Chief Court in revision and it was argued that a decree for over payment could only be passed under R. 9 when accounts had been taken under R. 7 of O. 34. That the procedure relating to proceedings under chap. 3 was prescribed by S. 7. Neither that section nor any other section gives the Court power to pass an order for over payment. Accordingly no orders for over payments could be made in proceedings under chap. 3. This contention was negatived. It appeared to the Bench that decided the revision application that it would be anomalous to accept the petitioner's argument. They observed:

“On the one hand we find a Court which, according to the applicants, though it is entitled to go into the accounts to find out what is due has the power only to make a decree for money in favour of the opposite party, but cannot if it finds money due to the applicants, make a decree in their favour. We scarcely think that the legislature could have intended to give the Court this one-sided jurisdiction. We do not wish to express any opinion about the maintainability of the separate suit suggested. Supposing that it would be maintainable, it would involve a multiplicity of suits where the whole work could equally well be done by one Court. The object of the Agriculturists' Relief Act in this matter seems to be to cut down lengthy proceedings. This seams to be the main object of Ss. 12 to 27. It would, therefore, be most anomalous if the result of this were that a separate suit had to be brought for over payments. Section 25 states that no suit shall be brought in any Court for any ‘relief which can be obtained by an application under this chaoter.’ It is arguable, therefore, that an agriculturist who could obtain relief under S. 12 would not be able to bring a suit under the Transfer of Property Act so as to obtain return of over payments. This would be another anomaly in the law.”

18. The learned Judges then referred to Section 27 of the Act xxvii [27] of 1934 and further observed:

“This would seem to bring in the whole of O. 34 and make it applicable. We see no reason why R. 9 should not be applied to an inquiry which is analogous to an inquiry which is actually under R. 7.”

19. They referred to Iqan Husain's case, (A.I.R (26) 1939 ALL. 88 : I.L.R (1939) ALL. 194) with approval and finally dismissed the application. One of the learned Judges who was a member of the Bench that decided Raja Bam's case (18 Luck 183 : A.I.R (29) 1942 Oudh 391) held in Misri Lal v. Gajodhar 1943 O.W.N 347 : (A.I.R (30) 1943 Oudh 433), that the provisions of O. 34, R. 7 of the CPC are applicable to proceedings under Section 12 of the Agriculturists' Relief Act, and that the Court has got the power to extend the time fixed for payment of the amount found flue. He cited the decision in Iqan Husain's case (A.I.R (26) 1939 ALL. 88 : I.L.R (1939) ALL. 194), in support of his view. Again in Ram Sunder v. Paras Ram, 1945 O.W.N 416 : (A.I.R (33) 1946 Oudh 88), the same learned Judge sitting with Walford J. laid down that where a decree for redemption under Section 12 of the U.P Agriculturists' Relief Act, is made conditional on the payment of a certain amount within a specified time and the payment is not made within the time the decree is not extinguished thereby. The right of redemption subsists and the Court has still jurisdiction to amend the decree under the Debt Redemption Act. Reference was made to the cases of Raja Ram v. Muhtaq Husain, 18 Luck. 183 : (A.I.R (29) 1942 Oudh 391) and Misri Lal v. Gajadhar, 1943 O.W.N 347 : (A.I.R (30) 1943 Oudh 433). The learned Judges observed:

“Section 12 of the Agriculturists' Relief Act, provides a cheap and summary remedy for redemption of mortgages by the agriculturists and it would be repugnant to the policy and principle of the Act to construe S. 16 as curtailing the right of the mortgagor or depriving him of the benefits conferred by the procedure laid down in O. 34 of the CPC. If the right of the mortgagors to obtain redemption has been extinguished as we do not hold it to be, it follows that they are entitled to redeem the property without recourse to the remedy of an expensive regular suit. To drive them to a separate suit would be to defeat the object of Section 25 of the Act which says that no suit shall be brought in any Court for any relief which can be obtained by an application under this chapter.”

20. We have shown that it is not possible to apply O. 34, R. 7(1) of the CPC to proceedings under chap. III of the Agriculturists' Relief Act. Sub-rule (2) of R. 7 empowers the Court to extend the time fixed for payment of the amount found or declared due under sub-r. (1) or adjudged due in respect of subsequent cost, charges expenses and interest. Accordingly if O. 34, R. 7(1) of the CPC is, inapplicable it is difficult to see how we can apply the provisions of O. 34 R. 7(2) to a proceeding under chap. III, Act XXVII [27] of 1934.

21. Section 27 provides that the provisions in the Code of Civil Procedure in regard to suits shall be followed, so far as they can be made applicable, in all proceedings under chap. III. This does not in our opinion authorise a Court to amend the provisions of the Code according to its fancy and apply such amended provisions to proceedings under that Chapter of the Agriculturists' Relief Act. Any provision of the Code which it is intended to apply to such a proceeding must be taken in its entirety and applied if it can properly be applied. It is not permissible to take part of any rule and apply it to a proceeding under chap. III even though another part of the same rule with which it is directly and vitally connected is dearly inapplicable.

22. A perusal of Section 148 and O. 34, Rr. 2(2), 4(2) and R. 7(2) of the CPC suggests that there is no general power possessed by Courts to extend the time once fixed by them under a decree or order. Wherever it was considered desirable to give the Courts such a power the legislature has done so by express enactment. Therefore the omission of any such provision in chap in, Agriculturists' Relief Act, must be deliberate. We are with the greatest respect unable to agree with the view taken in Raja Ram v. Mushtaq Husain, 18 Luck. 183, (A.I.R (29) 1942 Oudh 391), that S. 27

“would seem to bring in the whole of O. 34 and make it applicable to proceedings under Chap. III, Agriculturists' Relief Act.”

23. The scheme of O. 34 of the CPC is, as already observed earlier, essentially different from the procedure for redemption contained in chap. III of Act XXVII [27] of 1934.

24. An examination of the cases to which reference has been made earlier shows that there are three grounds on which it has been held that O. 34, Rr. 7(2) and 9 apply to proceedings under Chap. III, Agriculturist’ Relief Act: (1) The legislature having given the Courts power to take accounts between the mortgagor and the mortgagee it is scarcely conceivable that it gave them only one-sided jurisdiction i.e to pass an order for payment if any sum is found due to the mortgagee but refuse to pass an order directing the mortgagee to pay back to the mortgagor if there has been an over payment to the former; (ii) to take this view would result in multiplicity of suits when the object of the legislature is clearly to avoid lengthy proceedings; and (iii) the language of S. 27 which directs that the provisions of the Code of Civil Procedure so far as they can be made applicable shall be followed in proceedings under Chap. III.

25. The first of the grounds mentioned above loses sight of the difference in the language used in the two statutes and the object of the enquiry which the Court has to make in each case. Under O. 34, Sr. 7(1) and 9 of the CPC an account has to be taken of what is due to the mortgagee. Under R. 9 it has further to ascertain if he has been over paid and if there has been an overpayment the amount of such over-payment. Under Section 16 of the Agriculturists' Relief Act the enquiry must be limited to two points: (a) If the applicant is entitled to redeem; and (b) if the amount deposited by him is sufficient to satisfy the mortgage debt as due at the date of the application or at the date to be fixed for payment. There is nothing in the language of S. 16 empowering or requiring the Court to take a general account as between the mortgagor and the mortgagee and to find what is due from one party to the other. For instance, if in a case the mortgagee has been in possession for 20 years the Court ascertains the amount due under the mortgage on the date of the application. It then proceeds to inquire what sums the mortgagee has received from the mortgaged property in successive years since he was put into possession. If it finds after it has ascertained the profits of each year say for the first 13 years that the debt was wiped out, it may well refuse to take any further account of the income that accrued due during the next 7 years. There is nothing in the language of S. 16 which would make the adoption of such procedure in any case by the Court open to legitimate cirticism. But such a course cannot be adopted in an ordinary suit for redemption under O. 34 of the CPC. In view of the provisions of O. 34, R. 9 of the Code, the Court must determine not only if the debt has been satisfied but also if there has been an over payment to the mortgagee and what amount has been overpaid. It is an error to start with a preconceived notion that a proceeding under chap in, Agriculturists' Relief Act is only another and a summary method devised by the legislature as a substitute for an ordinary suit for redemption to which the provisions of O. 34 apply.

26. Act XXVII [27] of 1934 is a special local law and must be so administered i.e, care should be taken in construing the provisions of such a statute to limit their scope to the extent legiti mately warranted by the language used by the legislature. The notion that the legislature could scarcely have conferred upon the Court a one sided jurisdiction under which it can direct redemption if the debt is satisfied but cannot further make an order for refund if there has been an overpayment, is with the greatest respect in our view on a wrong assumption. There is no warrant for the assumption that a proceeding under chap. III, Agriculturists' Relief Act, is a substitute for an ordinary redemption suit including in its scope every matter that can arise and be determined in such a suit with only one difference that here the Court can adopt a summary procedure.

27. The objection that not to apply O. 34, R. 9 of the CPC to proceedings under Chap. III, Agriculturists' Relief Act would result in multiplicity of suits is also based on the assumption that such a proceedings is only a substitute for an ordinary suit for redemption to which the rules of O. 34 apply. We are on the other hand clear that such a proceeding must be confined to determination of matters which on the language of the statute legitimately fall within its scope. The plea of multiplicity of suits should not be made a ground for extending the scope of the statute beyond that is warranted by the language of the enactment.

28. As regards S. 27, it is sufficient to say O. 34, R. 9 of the CPC being dearly connected with R. 7 if the latter does not apply it would be wrong to detach R. 9 from its context and apply it to a proceeding under chap in, Agriculturists Act where there is no preliminary decree. We are not oblivious of the fact that a proceeding under chap in, Agriculturists' Relief Act, is naturally analogous to a suit for redemption to which provisions of O. 34 of the CPC apply. It is clear therefore that if the rules of O. 34 of the CPC do not in terms apply the procedure in a proceeding under chap. III will often be on the lines of the rules contained in that order. But to say so is not to hold that the Court can extend the time fixed for payment or that it can pass an order for refund of the money which has been over paid to the mortgagee.

29. We are, therefore of opinion that the first of the two questions referred to us must be answered in the negative.

30. We have already observed that there is no general power possessed by Courts to extend the time fixed by it under an order or decree for payment by a party of a sum of money to secure a right. Accordingly there can be no question of exercising a power to extend time on the principles underlying O. 34, R. 7(2) of the CPC.

31. Section 148 of the CPC is applicable only to extension of time where a period is fixed for doing of an act prescribed by the Code. It does not apply to a case where the period is fixed under any other statute. Nor can S. 151 which saves the inherent powers of the Court, be used for extending the period fixed under Section 16 of the Agriculturists' Relief Act, for payment of the mortgage money. This is a matter for which provision is made by the statute and though Section 16 of the Agriculturists' Relief Act, does not expressly say that the Court cannot extend the time fixed for payment we have held that the omission is deliberate. The result, therefore, is that both the questions referred to the Full Bench are answered in the negative.

D.R.R

32. Reference answered.

Jagjit Singh v. Sankatha Singh

Full Bench Opinion — Summary

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners

Opposite Party

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jagjit Singh v. Sankatha Singh

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