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Dr. Ram Kumar Vs. Mahadeo Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Exn. Second Appeal No. 7 of 1958
Judge
Reported inAIR1962Raj54
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38, 47, 148, 151 and 152 - Order 20, Rule 3 - Order 47
AppellantDr. Ram Kumar
RespondentMahadeo Lal and anr.
Appellant Advocate R.K. Rastogi and; J.S. Rastogi, Advs.
Respondent Advocate P.N. Dutt, Adv. for Respondent No. 1
DispositionAppeal dismissed
Cases ReferredChandri Abdul Majid v. Jawahir Lal
Excerpt:
- - having perused the material on record i am satisfied that this statement by shri b. it is well known that an executing court cannot vary the terms of the decree......the doing of any act prescribed or allowed by this code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.'11. the use of the expression 'from time to time' indicates that to act under this section the court must have a case before it in regard to which it has jurisdiction. the jurisdiction of a civil court in regard to an original suit begins from the date when the plaint is filed and it terminates on the date on which the judgment is dated and signed in open court under order 20 rule 3, that is, its jurisdiction terminates so far as the decision of any question between the parties which is decided in the decree. the language of order 20 rule 3 is imperative and it states that when the.....
Judgment:

Jagat Narayan, J.

1. This is a judgment-debtor's execution second appeal against an appellate order of the District Judge- Jhunjhunu.

2. The facts which have given rise to it are these. Mahadeo Lal respondent No. 1 brought a suit for mandatory injunction against Thakur Bhim Singh respondent No. 2 and Dr. Ram Kumar appellant in respect of a piece of land 156 1/2ft. X 11ft, on which the appellant had made some constructions. The trial court passed a decree in favour of the plaintiff on 29-4-52. Under this decree Dr. Ram Kumar was directed to demolish his constructions standing on the land in dispute within one month failing which they were to be removed at his expense on the plaintiffs applying to the court for execution. In the alternative the defendants were given the option of paying Rs. 257/- by way of compensation to the plaintiff within one month failing which the decree for mandatory injunction was to become absolute.

3. Neither of the two defendants paid nor tendered the sum of Rs. 257/- to the plaintiff during the period stipulated in the decree. On 2-7-52 on the re-opening of the courts after the vacation the appellant filed as application to the court explaining various circumstances in which he was unable to deposit the money by 29th May 1952 and prayed for extension of time granted under the decree to enable him to deposit the money. On that date the presiding officer was on leave and the application was ordered to be put on 7-7-52. On this application without issuing notice to the plaintiff the presenting officer passed an order extending the time granted under the decree upto 7-8-52 and on that date the appellant deposited Rs. 257/-.

4. The decree-holder filed an application on 3-7-52 for the execution of the decree. This application was also put up before the presiding officer on 7-7-52 On his return from leave. There were two prayers in the application namely the recovery of the amount of costs and the demolition of the constructions. The presiding officer does not appear to have applied his mind to the application and signed a routine order written by his clerk for warrant of attachment to be issued.

5. There is another order on the order-sheet of the execution file below the above order in which it is mentioned that the lawyer of defendant No. 2 deposited Rs. 257/- and prayed for stay of execution proceedings. The court stayed execution proceedings on this application without issuing notice to the decree-holder.

6. On 2-7-52 the appellant filed an appeal against the decree passed by the trial court. This appeal was dismissed on 10-11-52 and the order of the trial court was affirmed.

7. It was during the course of the arguments of this appeal that the learned counsel for the plaintiff learnt for the first time about the order of the court dated 7-7-52 extending the time for depositing the money. An appeal was then preferred against the order dated 7-7-52, on 18-11-52 along with an application under Section 5 of the Limitation Act in which it was alleged that the plaintiff had knowledge of the order dated 7-7-52 for the first time on 4-11-52. The appellate court allowed the application under Section 5 Limitation Act and set aside the Order dated 7-7-52 on appeal holding that the court had no power to extend the time fixed for depositing the money under the decree either under Section 148, Code of Civil Procedure or under Section 151, Code of Civil Procedure.

8. Against the above order the present second appeal has been preferred. Three points have been urged on behalf of the appellant.

9. The first contention on behalf of the appellant is that the plaintiff had knowledge of the order dated 7-7-52. Reliance is placed on an allegation made in the memorandum of appeal preferred by the plaintiff in the High Court in which it was mentioned that the executing court had overruled the plaintiff's objection that it could not go behind the decree. This memorandum of appeal was not signed by the plaintiff but was signed by one Shri B.K. Bhargava, an advocate, who preferred a second appeal in the High Court. Having perused the material on record I am satisfied that this statement by Shri B.K. Bhargava in the memorandum of appeal was made under a mistake. An examination of the order-sheets and the orders passed by the court on 7-7-52 goes to show that they were all passed ex parte. As soon as the plaintiff's lawyer learnt about the order dated 7-7-53 he filed an application on 4-11-52 to the executing court setting aside the order dated 7-7-52 which was passed ex parte. This application is paper No. 4/1 in miscellaneous file No. 19/1952 which is part of the file of. original suit No. 5/1951. In this application it was asserted that the order dated 7-7-52 was passed without giving any notice to the plaintiff and behind his back. The appellate court therefore rightly allowed the application of the decree-holder under Section 5 of the Limitation Act.

10. The next contention on behalf of the appellant is that the learned Civil Judge had power to extend the time granted under the decree. Reliance was placed on Krishnarao v. Balvant, AIR 1925 Bom 404. It was held in that case that although an executing court cannot modify or vary the terms of the decree, it has power to relieve a party to a decree against the consequences of his default in not observing the obligations imposed upon him by a decree. With all respect I am, unable to agree with this decision. The learned Civil Judge purported to extend time under Section 148 read with Section 151, Code of Civil Procedure. Since the Code contains specific provision for extension of time under Section 148, Code of Civil Procedure there is no scope for the exercise by the court of its inherent power under Section 151, Code of Civil Procedure. Section 148 runs as follows:

'Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.'

11. The use of the expression 'from time to time' indicates that to act under this section the court must have a case before it in regard to which it has jurisdiction. The jurisdiction of a civil court in regard to an original suit begins from the date when the plaint is filed and it terminates on the date on which the judgment is dated and signed in open court under Order 20 Rule 3, that is, its jurisdiction terminates so far as the decision of any question between the parties which is decided in the decree. The language of Order 20 Rule 3 is imperative and it states that when the judgment is once signed, it shall not afterwards be altered or added to, save as provided by Section 152 or on review. Moreover Order 20 Rule 6 states that the decree shall agree with the judgment and therefore in this period after pronouncing the judgment and before signing the decree the court has no jurisdiction to alter anything which it has decided in its judgment other than in accordance with Order 20 Rule 3. Section 152 provides for clerical or arithmetical mistakes in the judgment Or decree and the alteration in the period fixed for the payment of the money does not come under this description.

Turning now to Order 47 dealing with review none of the provisions are applicable to the present case. Moreover no application for review of the judgment was made. Such an application is required to bear proper court-fee stamp. Notice has to be issued to the opposite party before a review application can be decided. Extending time granted under the decree would therefore amount to varying the decree. It is well known that an executing court cannot vary the terms of the decree. In this connection a reference may be made to the following two decisions: Beni Prasad v. Om Prakash, AIR 1938 All 497; Kunwarpal Singh v. Antoolal, ILR (1955) Madh B 67. I accordingly hold that the learned Civil Judge had no power to extend the time for the payment of the money stipulated in the decree.

12. The last contention on behalf of the appellant is that as the decree of the trial court merged in the decree of the appellate court dated 10-11-52 the time of one month given under the decree of the trial court should be reckoned from the date of the decree of the appellate court In this connection the following decisions were referred to: Bhup Indar Bahadur Singh v. Bijai Bahadur Singh, ILR 23 All 152 (PC); Satvaji v. Sakharlal, AIR 1914 Bom 132, Raja Sashikanta v. Raja Sarat Chandra, AIR 1921 Cal 699, Gobind Prasad v. Jugdip Sahay, AIR 1925 Pat 369. On behalf of the respondent reliance was placed on the following decisions: Wasawa Singh v. Lal Singh, 48 Pun Re 1900 p. 172 (FB), Joseph John v. Varkey Thomas, (S) AIR 1957 Trav-Co 94 (FB), Panchu Sahu v. Md. Yakub, AIR 1927 Pat 345, Mahankali v. Subba Rao, AIR 1918 Mad 919; Aminabi v. Sidu, ILR 17 Bom 547, Jaggar Nath Pande v. Jokhu Tewari, ILR 18 All 223, Chiranji Lal v. Dharam Singh. ILR 18 All 455, Bhola Nath Bhuttacharjee v. Kami Chundra Bhuttacharjee, ILR 25 Cal 311, Ramaswami Kone v. Sundara Kone, ILR 31 Mad 28, Ghanshyamlal v. Ram Narain, ILR 31 All 379, Kunwarpal Singh v. Antoolal, ILR (1955) 4 Madh-B 67, Antulal v. Kunwarpal Singh, AIR 1958 Madh. Pra. 7, Jairam Nagoji v. Khaja Obedulla, AIR 1947 Nag 81, Beni Prasad v. Om Prakash, AIR 1938 All 497.

13. In ILR 23 All 152 (PC) the question before the Judicial Committee was whether the plaintiff was entitled to mesne profits upto the expiry of the period of three years from the decree of the trial court or upto the expiry of three years from the date of the appellate decree of the Judicial Committee and it was held that the operative decree was the decree of the Privy Council and that in reversing the High Court's and restoring the trial court's decree the Judicial Committee had declared that the decree-holder was entitled to mesne profits for the usual statutory period subsequent to its own decree. The decision in that case was affected by the provisions of the Code of Civil Procedure relating to future mesne profits. Their Lordships did not lay down the broad proposition that where time is prescribed by the decree of the lower court for the performance of a condition precedent and the appeal court simply confirms the decree of the lower court, it must be assumed that the time for performing the condition has necessarily been enlarged.

The decree of the trial court dated 29-4-52 certainly merged in the decree of the appellate court dated 10-11-52 and after the latter decree was passed that was the only decree which was operative. The decree of the trial court stood to the effect that the sum of Rs. 257/- should be paid within a month of the date of that decree or else the decree for mandatory injunction would become absolute. In other words the present appellant was required to deposit the money by 29-5-52 under the decree of the trial court. This decree was confirmed by the appellate court without any variation. That means that the decree of the appellate court is also to the effect that unless the sum of Rs. 257/- was paid by 29-5-52 the decree for mandatory injunction would become absolute. The mere fact that an appeal has been preferred does not prevent its being executed or enlarged the time for its performance. The judgment of the appellate court did not enlarge the time fixed under the decree of the trial court. The time of one month will therefore be reckoned from the decree of the trial court even though that decree has merged in the decree of the appellate court.

14. In AIR 1914 Bom 132 the first appellate court passed a decree that on the plaintiff paying a sum of Rs. 203-1-8 to defendants 1 to 6 within six months from the date of the decree he shall be put in possession of the property. Both parties appealed against the decree. The decree of the first appellate court was however confirmed by the High Court. Within six months from the date of the High Court's decree the plaintiff deposited the amount payable by him. It was held that the deposit was made within time. Reliance was placed on earlier decisions of the same Court in which the following reasoning was given:--

'Both parties must be held equally bound or equally benefited by the result of this second appeal, and if the original respondents would have become entitled to execute the decree of the High Court in case it had reversed the decision of the lower courts, we do not see any reason which prevents the present appellant from claiming his right to execute the decree of the High Court in his favour.'

15. The reasoning which I have given above and which has been given in a number of cases referred to above on behalf of the respondent was not examined in the above case. With all respect I am unable to subscribe to the view taken in it.

16. The decision in AIR 1921 Cal 699 is based on the interpretation of the word 'decree' as used in Section 211 of the old Code of Civil Procedure. It was held relying on the authority of the Privy Council case in ILR 23 All 152 (PC) referred to above that 'decree' under Section, 211 signifies the ultimate decree which alone has operative force and is capable of execution. The decision in this case has no application to the facts of the present case.

17. In AIR 1925 Pat 369 also the reasoning given in the cases in which a contrary view was taken was not examined. A subsequent Division Bench of the same Court did not follow this decision in AIR 1927 Pat 345. It took the same view which has been taken by me in this case.

18. In 48 Pun Re 1906 (FB) it was held that the decree of an appellate court dismissing the purchaser's appeal on the ground that the price fixed by the court below in a pre-emption suit was correct but silent as to time for the payment of pre-emptive money, must be construed to have incorporated all the terms of the decree confirmed including the provision fixing the date or time for payment, and that in such cases the time allowed must be calculated from the date of the original and not of the appellate decree. The learned Chief Justice observed in his judgment:--

'The judgment of this Court of 15th July 1903 is taken then as affirming the decree of the lower Appellate Court, and embodying the terms of that decree.

That being so, taking the actual terms of the decree of the Divisional Judge, the decree of this Court should have fixed the 25th April 1903 as the time for payment of the price, but it is argued that as the Divisional Judge allowed from 16th March to 25th April, a period of some forty days, for payment, that the decree of this Court, if it embodies the terms of the decree of the lower Appellate Court, must also allow forty days for payment. In my opinion to do this would be to effect a change in a most material part of the decree of the lower Appellate Court. Even where a definite period is expressly allowed (without a certain date being fixed), the result still is that the price must be paid by a certain fixed date, and for the Appellate Court to alter that date is not to maintain the decree of the Lower Court, but to change it in a most material particular.'

19. It will be profitable to quote the following observation of their Lordships of the Supreme Court in Naguba Appa v. Namdev, AIR 1954 SC 50:--

'It was contended on behalf of the appellant that the decision of the High Court was wrong inasmuch as an appeal having been preferred from the trial court's decree in the pre-emption suit, the pre-emptor was justified in not depositing the amount within the time fixed by the decree. This argument cannot be sustained. Mere filing of an appeal does not suspend the decree of the trial Judge and unless that decree is altered in any manner by the court of appeal, the pre-emptor is bound to comply with its directions. In our opinion, the High Court was right in holding that the pre-emptor's suit stood dismissed by reason of his default in not depositing the pre-emption price within the time fixed in the trial Court's decree.'

20. The above case is however distinguishable as the appeal was dismissed for default and the only executable decree was the decree of the trial court in view of the decision of their Lordships of the Privy Council in Chandri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66 in which it was observed:--

'The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all. To put it shortly, the only decree for sale that exists is the decree, dated the 8th April, 1893, and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed, and there is no decree of His Majesty in Council in which it has become merged.'

21. For reasons given above I dismiss theappeal and confirm the order of the lower appellate court. In the circumstances of the case, Idirect that parties shall bear their own costs.


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