The Judgment of the Court was delivered by
B.K Mukherjea, J.:— This appeal is on behalf of defendant 2 in a suit for redemption of a mortgage. The material facts which are not disputed may be shortly stated as follows: There is a putni taluk known as Banka Taluk in the District of Khulna which belonged to one Harish Chandra Roy. After the death of Harish, his executor who was the father of defendant 4 mortgaged the entire taluk to the Khulna Loan Co., who are defendant 1 in the present suit, on 22nd December 1922. On 31st March 1927 the plaintiff company obtained a mortgage of one-fourth share of the taluk from defendant 3 who was a cosharer in the mortgaged property. Defendant 1 instituted a suit on their mortgage bond in 1921 and got a decree on 19th August 1930. The plaintiff, who as stated above, was a puisne mortgagee of a fourth share of the property was not made a party to that suit. Defendant 1 in execution of the mortgage decree put up the entire taluk to sale and purchased it themselves on 25th August 1933. They took symbolical possession of the property on 13th March 1934. On 18th December 1934, they sold the property together with all their subsisting sights under the mortgage decree to defendant 2 who is the appellant before us. The plaintiff company, in the meantime, instituted a suit on their mortgage bond against defendant 3 and having got a decree purchased a fourth share of the mortgaged property on 26th January 1934. They now instituted the present suit for redemption, against defendants 1 and 2 on the allegation that as they were not made parties to the mortgage suit for defendant 1, the mortgage decree and sale were not binding on them and their rights of redemption remained intact. Defendant 2 contested the suit. He denied inter alia the rights of the plaintiffs to redeem and contended firstly that the plaintiff company could not in any event exercise their right of redemption beyond a fourth share of the property which was comprised in their mortgage.
1. The second contention was that as he himself was a previous purchaser of 1/6th share of the mortgaged property from defendant 5 he acquired a prior right to redeem the mortgage of defendant 1 in respect of the entire property as also the mortgage in favour of the plaintiffs. The Munsif who tried the suit overruled the first contention of the appellant and came to the conclusion that the plaintiffs' right of redemption extended to the entire mortgage of defendant 1 and was not confined to so much of it as related to ¼th share of the property. He held, however, that, as defendant 2 had purchased a sixth share of the property from defendant 5 previous to the mortgage sale by defendant 1 by the subsequent purchase of the mortgagee's rights of defendant 1, he got an absolute interest in the 1/6th share which could not be redeemed by the plaintiffs. The result was that the plaintiffs' suit for redemption was allowed to the extent of 5/6ths shara of the mortgaged property. Against this decision, the plaintiffs preferred an appeal reiterating their claim to redeem the entire mortgage security and defendant 2 filed cross-objections in which he took amongst others the grounds that the plaintiffs should not be allowed to redeem more than a fourth share of the mortgage. The lower Appellate Court dismissed the cross-objection of defendant 2 as being filed out of time and it dismissed the plaintiffs' appeal also on its merits. Defendant 2 has preferred this second appeal which is directed against the dismissal of his cross-objections and the plaintiffs have preferred a cross-objection challenging that part of the Appellate Court's decree which did not allow their claim to redemption of the whole mortgage.
2. So far as the appeal of defendant 2 is concerned, Mr. Bose who appears for the appellant argues that the lower Appellate Court ought to have extended the period of time for filing cross-objections under O. 41, R. 22 of the CPC, and it had refused to do so under a pure misconception of law. The notice of the appeal filed by the plaintiffs was served on defendant 2 on 11th November 1935 and he entered appearance on 3rd December 1935 but the cross-objections were not filed till 15th August 1936 and the Court of appeal below did not think that there was any sufficient reason for not filing them within thirty days from the date when the notice of the appeal was served upon him. In my opinion, it was entirely discretionary with the Court of appeal below to extend the time for filing cross-objections and in refusing to extend time it cannot be said that it committed an error of law which could be interfered with in second appeal. Mr. Bose's argument is that as the mortgage sale held at the instance of defendant 1 was set aside in a proceeding under O. 21, R. 90 of the CPC, commenced by defendants 6 and 7, by the Appellate Court, in July 1935 and the order was reversed in part by this Court, only on 22nd July 1936, his client, defendant 2, could not possibly file his cross-objections till the decision of the High Court was made. The learned Subordinate Judge overruled this contention by saying that as the plaintiffs were left out from the mortgage suit of defendant 1, their right to redeem the mortgage stood intact and the fact that there was a mortgage sale made no difference. Mr. Basu contends that this view is wrong and it is only when there is a mortgage sale, that he can raise the question of partial redemption. Mr. Gupta who appears for the respondents on the other hand takes up the position that as the plaintiffs were left out and were not made parties to the mortgage suit, neither the decree nor the sale was in any way binding on them and as they had a right to redeem the entire mortgage of defendant 2 the sale did not in any way affect their rights.
3. We have been referred to a number of decisions on this point by the learned advocates on both sides; but I do not think it at all necessary for us to enter into the controversy and discuss the propriety of the views respectively put forward by the learned advocates. The mortgage sale was set aside, as stated above, in July 1935 when the suit was pending in the trial Court. The appeal was filed in regular course by the plaintiff and defendant 2, if he wanted to challenge the judgment of the trial Judge, was hound to prefer an appeal himself or else to file a cross-objection within time laid down by law. Nothing had happened which stayed his hands in any way or prevented him from filing an appeal or cross-objection. There is no provision in the Limitation Act which would entitle him to extension of time simply because his legal adviser was under the impression that if the order setting aside the sale was not reversed, it could not be worth while proceeding any further. In the usual course of things he should have filed his appeal or cross-objections within proper time and if he thought that the sale set aside proceeding would in any way affect the decision, he could have prayed for staying the hearing of the appeal till the final decision in the other matter was given. I do not consider that there is any reason whatsoever for not filing the cross-objections within the specified period and I hold, that the cross-objections were rightly disallowed by the lower Appellate Court. I cannot therefore entertain the ground urged by Mr. Bose that in the circumstances of the case the plaintiffs' right of redemption should have been limited to the ¼th share which they purchased in execution of their mortgage decree against defendant 3.
4. The next point for our decision is, as to whether the Court below was right in holding that the plaintiffs could not redeem the 1/6th share of Abani, defendant 5 which was purchased by defendant 2. This share was undoubtedly purchased by defendant 2 after the preliminary decree was obtained by defendant 1 in his mortgage suit but before the mortgage sale was actually held. Mr. Gupta's contention is that the equity of redemption to the extent of 1/6th share must have been destroyed by the mortgage sale under the doctrine of lis pendens and consequently defendant 2 had no interest in the equity of redemption which would be deemed to have survived the sale. I do not think that this contention is sound. The effect of the application of the doctrine of lis pendens would be that the purchase by defendant 2 would be subject to the rights of the mortgagee as declared in the mortgage suit. As between the mortgagee on the one hand and defendant 2, who purchased the equity of redemption pending the mortgage suit, on the other, the right of redemption must be held to be subject to the rights of the mortgagee decree-holder. But as defendant 2 has now stepped into the shoes of the mortgagee decree-holder, as between him and the plaintiffs who were no party to the mortgage suit his right to the equity of redemption must be deemed to have stood intact and it is not affected in any way by the doctrine of lis pendens. In my opinion, the Court below was right in holding that the plaintiffs shall be allowed to redeem the mortgage of defendant 1 to the extent of 5/6th share.
5. The last question is, on what terms the redemption should be allowed. The Court below allowed the plaintiffs to redeem 5/6th share of the mortgage on depositing in Court 5/6th share of the amount due under the decree passed in favour of defendant 1 within one month from the date. This, in my opinion, is not proper. The plaintiffs were not parties to the mortgage suit and consequently are in no way bound by the decree. The mortgagee as against him is entitled to the mortgage money with interest at the bond rate up to the date of the expiry of the period of grace. Mr. Gupta does not dispute this proposition but what he says is that the plaintiffs were entitled to claim relief under the Money-lenders Act as there was stipulation in the mortgage bond for payment of compound interest with quarterly rests.
6. I think that in the circumstances of this case, defendant 2 should be allowed simple interest at the rate of 12 per cent, per annum from the date of the bond up to 13th March 1934, when defendant 2 is admitted to have taken possession of the mortgaged properties and on depositing 5/6ths of the total amount thus determined within two months from the date, defendant 2 shall re-transfer 5/6th share of the putni taluk to the plaintiffs at the cost of the latter and the plaintiffs will be put in possession of the same. As this is a matter consequent on the decree for redemption which is made by this Court, I do not think that the dismissal of the cross-objections filed by defendant 2 where this point was raised, stands in the way of making such an order in the exercise of our powers under the Code of Civil Procedure. Subject to the variation mentioned above, the decree of the Court below Stands. Parties will bear their own costs.
7. S.K Ghose, J.:— I agree.
D.S/R.K
8. Decree modified.