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Kandhya Singh Vs. Musammat Kundan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1920All173; 57Ind.Cas.16
AppellantKandhya Singh
RespondentMusammat Kundan
Cases ReferredIdumbu Parayan v. Pethu Reddy
Excerpt:
civil procedure code (act v of 1908), sections 148, 151, order xxxiv, rule 8, order xlvii, rule 1 - decree for possession, conditional on payment by certain date--alteration of judgment--enlargement of time--jurisdiction. - .....allow this application and direct that the time 'allowed for payment be one month from delivery of copy of decree to the plaintiff appellant.' in consequence of this order the court altered its judgment by inserting after the words 'one month' the words 'from delivery of copy of decree,' and the decree itself was amended in the same way. the money was paid into court on the 5th of april. the defendant-respondent applied to this court to set aside the order of the district judge dated the 13th of march 1919, on the ground that it was made without jurisdiction. it is conceded on behalf of the plaintiff that that order was not justified under the terms of section 148 of the code of civil procedure. having regard to the course of rulings of this court and especially the case of suranjan.....
Judgment:

1. Musammat Kundan brought a suit to set aside a mortgage and sale of a house which she had subsequently executed in favour of the first defendant. The Court of first instance gave her a decree on certain conditions. On appeal to the District Judge that Court ordered, on the 17th of February 1919, that the plaintiff should get possession of the house on condition that she paid a sum of Rs. 600 into Court within on) month. On the 13th of March 1919, that is four days before the time mentioned in the decree had expired, the plaintiff made an application to the Court in which she stated that she had been unable to get a copy of the decree up till then and that as she was a pauper, she had not money herself to satisfy the decree and could not get a loan from the local bankers without showing them the copy of the decree. She, therefore, prayed that she might be permitted to deposit the money within a month of her receiving' a copy of the decree. On this application the Court passed the following order:--' As it appears there has been great delay in preparing the copy of the decree, I allow this application and direct that the time 'allowed for payment be one month from delivery of copy of decree to the plaintiff appellant.' In consequence of this order the Court altered its judgment by inserting after the words 'one month' the words 'from delivery of copy of decree,' and the decree itself was amended in the same way. The money was paid into Court on the 5th of April. The defendant-respondent applied to this Court to set aside the order of the District Judge dated the 13th of March 1919, on the ground that it was made without jurisdiction. It is conceded on behalf of the plaintiff that that order was not justified under the terms of Section 148 of the Code of Civil Procedure. Having regard to the course of rulings of this Court and especially the case of Suranjan Singh v. Rambahal Lal 21 Ind. Cas 595 : 35 A 582 : 11 A.L.J. 950, it could not be argued that Section 148 gave the Court jurisdiction to pass this crier, but it is suggested that the Court had jurisdiction to extend the lime under Order XXXIV, Rule 8, because the suit was analogous to a suit for redemption of a mortgage, and reliance has been placed on a very recent decision of the Madras High Court in the case of Idumbu Parayan v. Pethu Reddy 54 Ind Cas 451 : 48 M. 357 : 37 M.L.J. 395 : 11 L.W. 25. It seems to us that Order XXXIV deals exclusively with suits on mortgages, and that the provisions of that Order cannot be utilized in any other suit. We are, therefore, unable to agree with the decision of the Madras High Court just quoted. Then it is suggested that we should take this order of the learned District Judge to be one in review of judgment under Order XLVII. It is suggested that possibly it is a wrong order and one which the Court perhaps should not have passed, but that nevertheless it was a just order and that, therefore, we should not interfere with it, in revision. It seems to us, however, that it could not possibly be taken to be an order by way of review of judgment. In the application made by the plaintiff on, which that order was granted it is quite clear that no foundation for a review was laid. Then it is suggested that the Court had power under Section 151 of the Code of Civil Procedure to pass the order. That section provides that 'nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.'

2. We are unable to see how that section can apply to the facts of this case. The result is that we allow the application and dismiss the plaintiff's application for extension of time. Under the circumstances we make no order as to costs.


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