Edge, C.J and Blair, J.:— The Maharaja of Bhurtpur brought a suit for sale under s. 88 of the Transfer of Property Act, 1882. The mortgage included several villages, and we infer [206] from the judgment and decree in the case that various amounts were charged upon the various villages as the liabilities of the particular villages. The Maharaja obtained a decree for sale under s. 88. The decree specified the amount for which each village was liable. After that decree had been obtained, one Chunni Lal obtained from the representative of the mortgagor a mortgage with possession of three of the villages. The Maharaja of Bhurtpur put his decree in execution, and obtained an order for the sale of the three villages, in question. That order was made under s. 89 of the Transfer of Property Act. It is true that the order did not say that it was an order absolute, but the order under s. 89 of the Transfer of Property Act is an order for sale in execution, as was held by the Full Bench of this Court. Afterwards Chunni Lal put in a petition asking that the mortgagee should be directed to receive from him the amount decreed against these particular villages and be ordered to abstain from bringing the villages to sale, but did not tender to the mortgagee or bring into Court the amount decreed against these particular villages. We have asked under what section that application was made. It could not have been made under s. 89 of the Transfer of Property Act. The day fixed for payment had passed and s. 89 unlike ss. 87 and 93 of the same Act, gives the Court no power to extend the time for payment on good cause shown. The Subordinate Judge, however, made an order in the terms of the prayer which had the effect of postponing the sale, and from that order this appeal has been brought.
We are told by the vakil for Chunni Lal, but it is not admitted on behalf of the mortgagee, and we do not know if it is the case or not, that after the order was made the amount decreed against these villages was paid into Court. We need not consider that question. S. 89 provides what is to happen in case the amount is paid on or before the day for payment, and as to what is to happen “if such payment is not so made.” If such payment is not so made, the plaintiff can apply for an order for sale, and the Court shall then pass an order that such property, or a [207] sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in s. 88, and “thereupon the defendant's right to redeem and the security shall both be extinguished.” It is quite clear that the Court had no power under s. 89 of the Transfer of Property Act, 1882, to extend the time within which payment of the debt and costs might be made. The Legislature must intentionally have omitted to give that power in s. 89 which it had expressly given in ss. 87 and 93. We have had to consider this group of sections in the following cases:—Amolak Ram v. Lachmi Narain Ram Lal v. Tulsa Kuar, and Kashi Prasad v. Sheo Sahai(1).
It is contended by Mr. Baldeo Ram for Chunni Lal that s. 291 of the Code of Civil Procedure, 1882, applied in this case and enabled Chunni Lal to have the sale stopped upon payment into Court of the debt and costs. It is hardly necessary for us to decide whether that section would apply or not, as at the time when the order under appeal was made the debt and costs had not been paid into Court or to the mortgagee. But, although what we are about to say is under the circumstances obiter, it is better that we should, for the guidance of Subordinate Courts in these Provinces, express our opinion as to the application of s. 291 of the Code of Civil Procedure, 1882, to a case in which under s. 89 of the Transfer of Property Act, 1882, an order absolute for sale has been made.
It is clear that, when such an order for sale has been made under s. 89, the defendant's right to redeem is by that section extinguished. The Transfer of Property Act, 1882 (Act No. IV of 1882), received the assent of the Governor-General on the 17th of February 1882, and came into force on the 1st of July in the same year. Act No. XIV of 1882 (the Code of Civil Procedure, 1882) received the assent of the Governor-General on the 17th of March 1882, and came into force on the 1st of June in the same year. The only procedure provided by the Legislature for they conducting of sales under decrees of Civil Courts is that which [208] is contained in the Code of Civil Procedure, and, although it may appear an anomaly that a Code which deals merely with procedure should in effect in a certain event give not only a right to redeem, but actual redemption, to a mortgagor whose right to redeem had been extinguished by the express enactment of the Legislature dealing with decrees for safe, and although in such cases s. 89 of Act No. IV of 1882 and s. 291 of Act No. XIV of 1882 are in conflict, it appears to us that we would be bound to hold that s. 291 of Act No. XIV of 1882 must be taken to have modified in that respect s. 89 of Act No. IV of 1882 when the debt and costs (including the costs of the sale) are tendered to the officer conducting the sale, or when it is proved to his satisfaction that the amount of such debt and costs had been paid into the Court that ordered the sale. It may be that s. 310-A of Act No. XIV of 1882 and the sections of that Act under which the execution of a decree is transferred from the Civil Court to the Collector further modify the concluding provisions of s. 89 of Act No. IV of 1882. In our view of the law Chunni Lal, being a mortgagee, although his title arose subsequently to the decree for sale, could have availed himself of any right which his mortgagor had after the making of the decree and of the order for sale, and could have paid into Court the amount payable under the decree for sale and any costs which the Court might by an order under s. 94 of Act No. IV of 1882 add to the mortgage-money, and thus stop the sale; but he did not adopt that course. The course which he adopted was one which might result in the indefinite postponement of the satisfaction of the decretal debt, and it is to be remembered that the Court not having the power to impose terms as a condition of postponing the day appointed for rayment, as it might if the case were one to which s. 87 or s. 93 of Act No. IV of 1882 applied, could not protect the mortgagee decree-holder from loss by making it a condition of a postponement that Chunni Lal should pay interest on the decretal amount.
[209] We allow this appeal with costs, and, setting aside the order under appeal, we dismiss the application of Chunni Lal with costs. This decision will not preclude Chunni Lal from availing himself of such rights as he may have under the Code of Civil Procedure.
Appeal decreed.