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1957 Supreme(Raj) 135
Rajasthan High Court
Wanchoo C.J. & Modi, J.
Ambalal - Appellant
Versus
Ambalal - Respondents
D.B. Civil Special Appeal No. 3 of 1954
Decided On : July 12, 1957
Hastimal, for Appellant; Chandmal, for Respondents
Headnote:(a) Limitation Act, sec. 5—Sufficient cause—High Court Rule, R. 97—Oral application for leave to appeal Judge postponing decision—Period between date of judgment and grant of leave.(b) Transfer of Property Acts sec. 60—Second suit for redemption whether maintainable.(c) Civil P. C. sec. 11—Suit for redemption decreed but decree not executed—Second suit for redemption not barred.(d) Transfer of Property Act, sec. 60—Section embodies equitable principle which applicable even though Act not in force.
Rule 97 provides that no application shall be entertained later, and the court shall thereupon record an order granting or refusing to grant the leave prayed for. According to this rule, when special leave is prayed for against the judgment of a Single Judge, such leave should be granted or refused by him then and there, and that indeed is the usual practice of this Court. In this particular case however, when leave was prayed for orally at the proper time, the matter was posted for hearing after notice to the opposite side, and leave was eventually granted on the 13/08/1954. It appears from the affidavit filed by the defendant appellant that 15th and 16/08/1954, were holidays, and learned counsel for the appellant applied for a copy of the judgment of the Single Judge sought to be appealed from on the 17/08/l954, and he obtained it on the 25/08/1954. Apart of this time from 13/08/l954, was also taken by the counsel in getting into contact with the appellant who was required to come to Jodhpur from his home town Sardargarh, and go back to arrange for the money required to file the appeal. Thus altogether a period of 12 days was allowed to elapse between the date the leave was granted and the actual filing of the appeal. The entire time taken from the !6/02/1954, to the 13/08/1954, could not be attributed to any default on the part of the appellant and further that the time which was taken from the 14th August to the 25/08/1954, to arrange for the filing of the appeal could not be said to be unreasons-able under the circumstances of the case. (Para 4)
In a case of redemption, a fresh cause of action comes into play so long as the right to redeem (which is a master of substantive right) remains in fact and has not been extinguished though it might have resulted in a decree in an earlier suit which for some reason or another remained unsatisfied. When once it is held that a second suit be lawfully brought it must further be held that the comparatively subordinate considerations of procedural law, namely, that a second suit is barred by the principle of res judicata or that the mortgage has become merged in a decree an is, therefore, not available as the foundation of a second suit must necessarily give way to the para-mount consideration that so long as the right to redeem is not extinguished effectively either by act of parties or by an order of the court, the right to redeem must receive its natural and full play. (Para 13))
2 The facts leading up to this appeal may be shortly stated as follows. The plaintiff respondent Ambalals grand-father gave a possessory mortgage of the suit shop to the defendant appellant for Rs. 569/- on Asad Vadi 10 Svt. 1975 The original mortgagor took a further loan of Rs. 55/- against the security of this very property. On the death of the latter, his son Badarmal brought a suit to redeem this property, and obtained a decree which was upheld by the highest court in the former Udaipur State, namely, Mehdraj Sabha, on the 28th February 1933 By this decree it was declared on the strength of an award by an arbitrator to whom the matter was referred by common consent of the parties that Badarmal do obtain possession of the suit shop on payment of a sum of Rs. 1375/-. It should be noted that no time was fixed for the payment of the decretal amount nor was it mentioned in the decree that the plaintiff mortgagor would be debarred from his right to redeem the mortgage in case he failed to pay the decretal amount. It appears that Badarmal died after the decree was passed leaving a minor son. Anyhow, no execution was taken of this decree. In March, 1917, the plaintiff respondent Ambalal deposited the decretal amount in court and prayed that a final decree be passed in his favour. This prayer was repelled by the High Court of the former State of Rajasthan by its judgment, dated the 1st July, 1948, wherein it was held that the decree passed by the Mehdraj Sabha in 1933 was itself final, and that as a period of more than 3 years had since passed, that decree was not capable of execution. Thereupon the said respondent sold his rights with respect to the suit property in favour of the other two plaintiffs respondents by a registered document dated the 13th March, 1947, wherein the plaintiff respondent Ambalal had still taken upon himself the responsibility to secure possession of the suit shop to the vendees. Eventually all the plaintiffs respondents instituted the present suit on the 4th May, 1949, claiming to redeem possession of the suit shop on the ground that the defendant Ambalal was still in possession of it as a mortgagee and that the plaintiffs were entitled in law to bring a second suit for redemption. The defendant resisted the suit and raised a number of pleas but the only plea which is relevant for the purposes of the present appeal and to which it is necessary to refer was that the suit of the plaintiffs was barred inasmuch, as an earlier suit for redemption had been decreed but the decree had been allowed to become time-barred and so a second suit was not maintainable. The trial court repelled the aforesaid plea and decreed the plaintiffs suit and allowed the plaintiffs to redeem the shop within six months of the date of the decree failing which the defendant appellant was directed to pray for a final decree that the plaintiff be debarred for ever from redeeming the property.
3. Appeals from the above decree were taken in due course to the District Judge and a learned single Judge of this Court, and were dismissed, and the judgment of the trial court was affirmed. The judgment of the learned Single Judge was announced on the 16 February, 1954. Learned counsel for the appellant made an oral prayer at the very time the judgment was announced that leave be granted for a special appeal. It appears that he also made a written application on the same day. 1 his application, however, came to be dispossed of on the 13th August, 1954, and leave was granted. The appeal was actually filed in this Court on the 25th August, 1954, and an application under sec. 5 of the Limitation Act was also filed for condonation of the delay in filing this appeal from the 14th August, 1954 to the 25th August, 1954.
4. A preliminary objec
