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Balmakund and anr. Vs. Seth Piyare Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1931All318; 129Ind.Cas.732
AppellantBalmakund and anr.
RespondentSeth Piyare Lal and anr.
Cases ReferredS.S. Balakrishna Iyer v. Parvathammal A.I.R.
Excerpt:
- .....into a knot by passing orders without understanding their effect. on 28th march 1930 he passed a decree by which he ordered possession in favour of the plaintiff with this proviso : that if the deficient court-fee was not paid within two days of 28th march 1930 the suit shall stand dismissed. the decree was a complete decree and on 30th march 1930 on nonpayment of the court-fee, the result of the decree was that the suit stood dismissed with costs. subsequently on 1st april 1930 the plaintiff applied for extention of time for the filing of deficient court-fee and on 25th october 1930 the court allowed the application and accepted the court-fee stamp. the defendant has come here in revision and argued that the order of 25th april was passed by the munsif without jurisdiction. i.....
Judgment:

Dalal, J.

1. The trial Court has brought the proceedings into a knot by passing orders without understanding their effect. On 28th March 1930 he passed a decree by which he ordered possession in favour of the plaintiff with this proviso : that if the deficient court-fee was not paid within two days of 28th March 1930 the suit shall stand dismissed. The decree was a complete decree and on 30th March 1930 on nonpayment of the court-fee, the result of the decree was that the suit stood dismissed with costs. Subsequently on 1st April 1930 the plaintiff applied for extention of time for the filing of deficient court-fee and on 25th October 1930 the Court allowed the application and accepted the court-fee stamp. The defendant has come here in revision and argued that the order of 25th April was passed by the Munsif without jurisdiction. I have looked through the record. There has been no subsequent amendment of the decree and the decree as it stands at present directs dismissal of the suit even after the passing of the order of 25th April. The first objection taken was on behalf of the plaintiff that no application for revision lay. A Bench judgment of this Court in Chhakkan Lal v. Kanhaiya Lal A.I.R. 1923 All. 118 was quoted. In that case no question of jurisdiction arose because the Court had directed a certain amount of court-fee to be paid during the proceedings in suit prior to the decree. The second case quoted was the Privy Council one, Faizullah Khan v. Mauladad Khan A.I.R. 1929, P.C. 147. Here also the question was not of an extension of time granted under a decree. Their Lordships held that the case was one where judicial authority should exercise discretion under Section 149, Civil P.C. The proceedings there also were in suit or at subsequent stages of appeal and not subsequent to a final decree.

2. It is argued on behalf of the plaintiff that the Court had jurisdiction under Section 149 to extend the time for the payment of court-fee. I do not agree with this opinion. The discretion to be exercised at any stage means a stage of the judicial proceedings and not after a final decree had been passed and the Court was divested of jurisdiction with respect to that suit. There are several rulings of this Court to indicate that once a decree was passed a Court was deprived of its jurisdiction to extend the time for payment of court-fee. The case exactly in point is the one of Sajjadi Begam v. Dilawar Husain [1918] 40 All. 579. In that case there was a condition embodied in the decree that the plaintiff was to pay up within a week the deficiency of Rs. 20 in court-fees and that in default thereof the suit would stand dismissed with costs. After the period had expired the plaintiff made an application stating that she had not been informed that the requisite amount was Rs. 20 and praying for an extension of time under Section 148, Civil P.C., in order to enable her to pay in the remaining amount of the court-fee. Their Lordships in this Court observed:

But there seems to be a more formidable objection to the present application namely that once the term about depositing the Rs. 20 was embodied in the decree, the Court itself, even if it desired, had no jurisdiction to alter its own decree save on an application for review of judgment under Section 114, read with Order 47, Rule 1.

3. Their Lordships referred to pre-emption suits and then went on to observe:

The ground for these decisions has always been that the Court has no jurisdiction to interfere with its own decree save in the manner we have mentioned above. There is no distinction between a, pre-emption decree and any other decree which embodies certain conditions and provides for the suit being dismissed if those conditions are not complied with. The only exception is that of mortgage decrees : time can be extended in mortgage decrees by virtue of the provisions of Order 34.

4. This ruling was followed by a Bench of the Calcutta High Court in Habibulla v. Gola Asmotar Khatun A.I.R. 1923 Cal. 612. The Madras High Court has also been of the some opinion in S.S. Balakrishna Iyer v. Parvathammal A.I.R. 1928 Mad. 154. One of the learned Judges composing the Bench laid down that the test to determine in cases of this nature whether power still exists to extend time is whether the proceeding in which time was originally granted is still pending or has been disposed of. Their Lordships pointed out that in cases of this nature no further order was necessary and that the matter was disposed of when the original order was passed and the Court had been deprived of its jurisdiction. The order of 25th April 1930 was passed by the Munsif without jurisdiction and is hereby discharged. No order is made as to costs.


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