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Golaprai JaIn Vs. Gouranga Meher - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 394 of 1968
Judge
Reported inAIR1969Ori266; 35(1969)CLT648
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148; Evidence Act, 1872 - Sections 56
AppellantGolaprai Jain
RespondentGouranga Meher
Appellant AdvocateG. Rath and ;R.K. Patra, Advs.
Respondent AdvocateR. Das, ;P.K. Das and ;J. Swain, Advs.
Cases ReferredKanduri Sahu v. Nidhi Sahu
Excerpt:
.....1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - this division bench decision is no longer good law in view of the supreme court decision. drought in the western part of orissa for the last 3 to 4 years is a notable event, and the assertion made by the surety has not been countermanded by any reliable evidence......that this 5 per cent would be paid by the judgment-debtor to the auction purchaser. this amount is to be paid also within two months from today, failing which the revision would stand dismissed without further reference to bench. if both the amounts are paid in time, the sale would be set aside. 7. in the result, the impugned orderis set aside and the civil revision isallowed subject to the conditions asnoted above. in the circumstances, parties to bear their own costs.
Judgment:
ORDER

G.K. Misra, J.

1. In execution of a money decree against the petitioner (Judgment-debtor) the property of the judgment-debtor has been attached and sold, but the sale has not been confirmed. Bala-mukunda the brother of the judgment-debtor stood surety for the judgment-debtor, and asked for payment of the money by instalments. On 15-7-66 the instalment order was passed whereby Balamukunda was to pay at the rate of Rs. 500/- per annum from 15-3-67 onwards. He paid the first instalment of Rs. 500/- on 15-3-67. On 15-3-68 he defaulted. On 18-3-68 a petition was filed for extension of time, and towards the instalment he deposited Rs. 200/- on 11-4-68. The application for extension of time was rejected. Against the order rejecting this application the judgment-debtor has filed the Civil Revision.

2. Mr. Das for the opposite party raised a preliminary objection that the revision is not maintainable at the instance of the judgment-debtor. The objection is technical and I find no substance in it as the instalment order was meant to benefit the judgment-debtor whose property has been put to sale and is awaiting confirmation. I accordingly dismiss the preliminary objection.

3. The question for consideration is whether after the expiry of the time fixed the court has got power to extend time. Mr. Das places reliance on a Division Bench decision of this Court reported in AIR 1954 Ori 136, Hati Pratihari v. Alekh. This decision fully supports his contention. In AIR 1961 SC 882. Mahanth Ram Das v. Ganga Das, the matter was fully examined. The decision in AIR 1954 Ori 136 is directly contrary to the pronouncement made in the Supreme Court decision. This Division Bench decision is no longer good law in view of the Supreme Court decision. The matter has been examined by me fully in 31 Cut LT 757 ;(AIR 1966 Ori 44),Kanduri Sahu v. Nidhi Sahu, where the entire position was reviewed. It was held therein that the Court has got power to extend time though it was always open to the Court to refuse to exercise that discretion if sufficient cause is not made out.

4. The next question for consideration is whether the time should be extended in this case. The surety in his application for extension of time made out a case that he could not pay the amount due to drought. Drought in the western part of Orissa for the last 3 to 4 years is a notable event, and the assertion made by the surety has not been countermanded by any reliable evidence. I accept the ground as sufficient, and I am of opinion that in the facts and circumstance of this case time should be extended.

5. On 15-3-68 the judgment-debtor and the surety were to pay Rs. 500/-. Out of this Rs. 200/- was paid to the decree-holder on 11-4-68 The judgment-debtor or the surety is therefore liable to pay Rs. 300/- towards the instalment due on 15-3-68 and Rs. 500/- towards the instalment due on 15-3-69. This amount of Rs. 800/- has already fallen due. The judgment-debtor would pay a sum of Rs. 500/- more by way of advance towards the instalment due on 15-3-70 Thus, in all, the judgment-debtor would pay Rs. 1300/- to the decree-holder within two months from today, failing which this revision would stand dismissed without further reference to Bench.

6. Mr. Das brings to my notice that the sale having already taken place, the auction purchaser is entitled to 5 per cent compensation as the sale is being set aside. Mr. Rath concedes that this 5 per cent would be paid by the judgment-debtor to the auction purchaser. This amount is to be paid also within two months from today, failing which the revision would stand dismissed without further reference to Bench. If both the amounts are paid in time, the sale would be set aside.

7. In the result, the impugned orderis set aside and the Civil Revision isallowed subject to the conditions asnoted above. In the circumstances, parties to bear their own costs.


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