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Madhya Pradesh High Court · body

1976 DIGILAW 165 (MP)

Babulal v. State Bank of Indore

1976-11-30

B.R.DUBE, G.G.SOHANI

body1976
Short Note : 1. In a suit instituted by the respondent against the appellant for recovery of a sum of Rs.26,199.35 by enforcing a mortgage, the trial Court passed a preliminary decree for sale on 19th December 1974. On 9th July 1975, an application was submitted by the plaintiff-respondent under Order 34, rule 5 CPC for passing a final decree. In reply dated 31st, January 1976 filed by the defendant-appellant, he prayed inter alia that he be granted the facility to pay the decretal amount by instalments. By its order dated 6th February 1976, the trial Court held that the prayer made by the appellant amounted to a prayer for extension of time to pay the decretal amount, which could not be granted. Held: From a perusal of the provisions of Order 34, rule 4 (2) CPC it is clear that the trial Court had jurisdiction, or good cause shown and upon the terms to be fixed by the Court, to extend the time fixed for the payment of the amount due. The prayer for granting facility of instalments made by the appellant was construed by the trial Court to be a prayer for extension of time to pay the amount due. In these circumstances, the trial Court was bound to consider that prayer on merits and give a finding in that behalf before proceeding to pass a final decree. In rejecting that prayer on the ground that it had no jurisdiction to grant extension of time, the trial Court has committed an error of law. Case remanded. Appeal allowed.