016-NLR-NLR-V-39-ARUNACHALAM-CHETTIAR-v.-PAULIS-APPUHAMY.pdf
FERNANDO A.J.—Arunachalam Chettiar v. Paulis Appuhamy.
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Present: Moseley J. and Fernando A.J.
ARUNACHALAM CHETTIAR v. PAULIS APPUHAMY.
142—D. C. Colombo, 51,848.
Mortgage decree—Time fixed for payment of money—Court’s power to extendtime on cause shown—Civil Procedure Code, s. 343.
Where sufficient cause is shown for stay of the sale of property inexecution of a mortgage decree a Court has power to grant an extensionof time for payment of money due under the decree.
Ramanathan v. Ibrahim (36 N. L. R. 445) referred to.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera (with him Wickremanayake), for defendant, appellant.
N. Nadarajah, for plaintiff, respondent.
Cur. adv. vult.
November 10, 1936. Fernando A.J.—
In this case a decree was entered on March 28, 1934, directing that-order to sell the mortgaged property was not to issue either until thedefendant makes default in the payment cf certain sums which he agreedto pay on certain dates, or till a period of two years from the date of thedecree has expired. That period having expired in March, 1936, theplaintiff applied for an order to sell, and defendant applied for a furtherperiod within which he might pay the money. The learned District
44FERNANDO A.J.—Arunachalam CHettiar v. Paulis Appuhamy.
Judge held it was not open to him to enlarge the time fixed in the decreeitself. It is true that the decree was entered of consent, but althoughthe consent motion provided that in the event of the full claim not beingpaid within the period of two years, commission to sell was to issueforthwith without notice to the defendant, that provision was not enteredin'the decree, and I take it that this was omitted advisedly.
The District Judge relies on the judgment of this Court in Ramanathanv. Ibrahim1 where Akbar J. set aside the order of the District Courtallowing the judgment-creditor nine months’ time to pay, because as hesaid “ the proper course would have been to fix the conditions underwhich the sale was to be carried out, and in those conditions to fix theperiod within which the balance due1 to the judgment-creditor was to bepaid ”. The case was therefore, sent back in order that the DistrictJudge? might fix a period after which the sale is to be carried out.
The direction thus given appears to my mind to be inconsistent withthe earlier portion of his judgment in which he states that the conditionsof sale must be with reference to the original decree, and must not havethe effect of altering or contradicting or varying the period fixed by theCourt in the original decree. Nor is this case any authority for theproposition that in the case of a mortgage decree the provisions of section343 of the Civil Procedure Code do -not enable the Court for good reasonto stay execution of the decree. That section was held in Faulkner v.Soysa ’ to apply to sales under mortgage decrees entered under section 201of the Civil Procedure Code, and I see no reason for doubting that thesection applies in all cases of execution of orders entered by Court. Itis true that in the ordinary course, execution will be allowed by Courtunless due cause is shown why execution should in any particular casebe delayed, and in this case the evidence led for the defendant doesindicate that the plaintiff placed certain objections in the way of thedefendant raising a loan on the mortgaged properties, and the learnedDistrict Judge found that the plaintiff was probably irritated by thefact that the defendant had filed an action against him. In the circum-stances of this case we direct that an order to sell should not issue for afurther period of six months from the date of the receipt of the recordin the District Court and that the title, deeds and. plans of the mortgagedlands should be deposited by the plaintiff within a week of the recordreaching that Court with the Secretary, so that the defendant’sproctor might have access to them in order to apply for a loan, or toforward them to the State Mortgage Bank or to any other likely creditor.It will be clearly understood that the defendant’s proctor if he takes thedeeds from the Secretary will be personally responsible to see that thesame are returned to the Secretary within a reasonable time, and in anyevent before the expiration of the period of six months already referred to.As execution has been stayed as an indulgence to the defendant, he willnot be entitled to the costs of this appeal or of the application to the Dis-trict Court, and each party will bear his own costs of these proceedings.Moseley J.—I agree.
Set asidL.
* 36 N. L. R. 443.
1 26 N. L. R. 449