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Smt. Sarju Vs. Ishwari - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1133 of 1952
Judge
Reported inAIR1961All86
ActsSuccession Act, 1925 - Sections 214; Code of Civil Procedure (CPC) , 1908 - Sections 33 and 148
AppellantSmt. Sarju
Respondentishwari
Appellant AdvocateGopi Nath, Adv.
Respondent AdvocateRadha Krishna and ;Gopal Behari, Advs.
DispositionRevision allowed
Excerpt:
.....33 and 148 of code of civil procedure, 1908 - conditions placed to be satisfied within the time as ordered by the court - order challenged - held, the court has jurisdiction to extend time. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain..........in revision against an order of the learned munsif of jhansi, refusing to extend time to file a succession certificate. 2. the facts giving rise to this revision may be shortly stated thus: a suit was filed for money and judgment in that suit was made on the 18th of december, 1950. in that judgment it was said that the plaintiff's suit was to be decreed on condition that the plaintiff produced a succession certificate in his favour in respect of the document on the basis of which the plaintiff's suit had been filed, within one month from the date of the judgment, failing which the suit was to stand dismissed. to the plaintiff it became apparent shortly after that the period of one month would expire and that he would be unable to get the necessary succession certificate in his favour.....
Judgment:
ORDER

B. Mukerji, J.

1. This is an application in revision against an order of the learned munsif of Jhansi, refusing to extend time to file a succession certificate.

2. The facts giving rise to this revision may be shortly stated thus: A suit was filed for money and judgment in that suit was made on the 18th of December, 1950. In that judgment it was said that the plaintiff's suit was to be decreed on condition that the plaintiff produced a succession certificate in his favour in respect of the document on the basis of which the plaintiff's suit had been filed, within one month from the date of the judgment, failing which the suit was to stand dismissed.

To the plaintiff it became apparent shortly after that the period of one month would expire and that he would be unable to get the necessary succession certificate in his favour for being filed in court. An application for the grant of a Succession Certificate had been made promptly by the plaintiff but the grant of the Succession Certificate within time did not, obviously, lie in the plaintiff's hand for he had to abide his time along with other applicants in the court which granted such Succession Certificates. The plaintiff, as I have said, applied to the court within time for extending the time for bringing the Succession Certificate and filing it in court.

3. The learned Munsif, on the 26th of February 1951, refused to give time to the plaintiff not on the ground that the plaintiff's request for time was an unreasonable request or for any other similar cause but on the sole ground that the court had no jurisdiction to extend time or to grant any further time. The ground on which the learned Munsif entertained the aforementioned view was that the order which he had made on the 18th December 1950 took effect automatically and therefore the court had become functus officio and could therefore, make no further orders in the cause.

(3a) The order which the learned Munsif made on the 18th December 1950 was a part of his judgment. According to Section 33 C. P. C. a decree has to follow the judgment and as a matter of fact, a decree is drawn up in accordance with the judgment. Section 214 of the Indian Succession Act (XXXIX of 1925) says this:--

'No court shall -

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or

(b) ..... (not material for our purposes) except on the production by the person so claiming of-

(i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or

(ii), a certificate granted under Section 31 or Section 32 of the Administrator-General's Act, 1913 (III of 1913), and having the debt mentioned therein, or

(iii) a succession certificate granted under Part X and having the debt specified therein, or

(iv) a certificate granted under the Succession Certificate Act, 1889 (VII of 1889) or

(v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein.

(2) The word 'debt' in Sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes.

4. From the words of the aforequoted section it would be clear that the only prohibition which the law enforced was that a decree could not be passed by the court in respect of the debt for which the plaintiff sought a decree in his favour unless and until he had produced one of the things mentioned in Sub-section (1) of Section 214 of the Indian Succession Act. The section did not contemplate or authorise the making of a conditional order which could entail the dismissal of the suit. The form in which the learned Munsif made his order on the 18th December, 1950 was therefore note appropriate.

5. The main question, however, that has to be determined is whether the Munsif had the power or the jurisdiction to extend time. In my, view he had the power, for the condition which; the learned Munsif had imposed by the judgment of the 18th of December, 1950, could not be made a part of the decree. The proper decree that couldbe made was the one contemplated by Section 214 of the Indian Succession Act,

6. A court has obviously the power to extend the time fixed by it by an order or by a judgment fill the time fixed has actually expired and the condition which was to follow has actually followed. A similar view was expressed by Roxburgh, J. in Bajranglal Jhunjhunwalla v. Smt Solaki Marwarini : AIR1950Cal564 .

7. Mr. Radha Krishna, appearing on behalf of the opposite party, took his stand on those cases where a Court makes a conditional order in cases of restoration of suits, for supporting the view that the Court had no jurisdiction in this particular case to extend time. In my opinion these cases had no application.

8. For the reasons given above I am of opinion that this revision must succeed for the court had refused to exercise jurisdiction vested in it to extend the time. I accordingly set aside the order of the court below and send the casp back for granting such opportunity as he deems just to the plaintiff to put in a succession certificate in respect of debt for which he had sued and obtained a judgment in his favour and thereafter proceed finally to determine the cause in accordance with law.

9. Parties to this revision would bear theirown costs.


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