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Haji Eakub Shaikh and anr. Vs. Samjan Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1940Cal275
AppellantHaji Eakub Shaikh and anr.
RespondentSamjan Bibi and ors.
Cases ReferredGirish Chandra Das v. Sm. Annadamoni Dasi
Excerpt:
- .....the purpose of depositing the dues of the decree-holder. the learned munsif thereupon granted an extension of time until 20th december 1938, on which date the deposit was made and the rent sale was set aside. an appeal was then taken by the decree holder to the court of the learned district judge who held that the trial courts acted without jurisdiction in granting an extension of time on 10th december 1938. the learned judge therefore allowed the appeal and set aside the order of the trial court and directed that the application under section 174, ben. ten. act, should stand rejected.3. the main point urged by the learned advocate for the petitioners in support of this rule is that the trial court had jurisdiction to allow the petitioners an extension of time having regard to the.....
Judgment:
ORDER

Edgley, J.

1. This rule arises with reference to an application filed by the judgment-debtors, who are the petitioners before this Court, for the purpose of setting aside a certain rent sale which had been held on 11th July 1938. The learned Munsif allowed the petitioners' application by his order dated 30th November 1938, his order being to the following effect:

Ordered therefore that the application will be allowed and the sale set aside on deposit of the decretal amount and legal compensation to which the auction-purchaser is entitled within ten days, failing which the present application will stand rejected.

2. On 10th December 1938 the petitioners filed an application in which they asked for an extension of the time allowed under the order of 30th November 1938 for the purpose of depositing the dues of the decree-holder. The learned Munsif thereupon granted an extension of time until 20th December 1938, on which date the deposit was made and the rent sale was set aside. An appeal was then taken by the decree holder to the Court of the learned District Judge who held that the trial Courts acted without jurisdiction in granting an extension of time on 10th December 1938. The learned Judge therefore allowed the appeal and set aside the order of the trial Court and directed that the application under Section 174, Ben. Ten. Act, should stand rejected.

3. The main point urged by the learned Advocate for the petitioners in support of this rule is that the trial Court had jurisdiction to allow the petitioners an extension of time having regard to the provisions of Section 148, Civil P.C., especially in view of the fact that the application for time was made before the expiry of the period mentioned in the order of 30th November 1938 within which the deposit had to be made. The learned Advocate argues that in these circumstances, the trial Court was still in seisin of the case on 10th December 1938 and that the order allowing an extension, which was passed on that date was consequently valid in law.

4. In support of his contention the learned Advocate for the petitioners places considerable reliance upon the case in Abu Muhammad Main v. Mukut Pertap Narain (1916) 3 A.I.R. Pat. 268 and the case in Ramesh Chandra v. Pramatha Nath : AIR1936Cal245 . The latter case is not particularly helpful in connexion with the matter now under discussion inasmuch as it relates directly to Section 149, Civil P.C. That Section allows a Court in its discretion at any stage to allow the person by whom court-fees are payable to deposit the deficit court-fee and, this being the case, the Court had jurisdiction to make the order which was under discussion in that particular case as it was made before the final disposal of an appeal. As regards Abu Muhammad Main v. Mukut Pertap Narain (1916) 3 A.I.R. Pat., it appears that the appeal related to a decree for pre-emption. A date had been fixed for depositing the preemption money apparently with a direction to the effect that the suit should stand dismissed on failure to make the necessary deposit. On the last date fixed for the deposit of the money an application was made to the Court for extension of the time to make the deposit. This application was granted. It was contended that this order was made without jurisdiction. The learned Judges held that Section 148 applied to a case of this sort and they observed that:

Under Section 148 discretion is vested in the Subordinate Judge to extend the time within which the act prescribed by his decree should be done.

5. A different view was however adopted with reference to matters of this kind by Mitter J. and M.C. Ghosh J., in Kshetra Mohon Ghose v. Gour Mohon : AIR1934Cal21 . In that case the learned Judges held that where a certain time is fixed by a decree of the Court for taking some steps and it directs that on failure to do so within the time limited the case should stand dismissed, the Court has no jurisdiction to extend the time limited by the decree. With the view expressed in Kshetra Mohon Ghose v. Gour Mohon : AIR1934Cal21 I am in entire agreement. Having regard to the terms of Section 148, Civil P.C., I do not think it could have been the intention of the Legislature that this Section should have any application in the case of a decree or order of a final character made by a Court. The Section refers to the doing of acts prescribed or allowed by the Code of Civil Procedure. The acts contemplated must, in my opinion, relate to the acts authorized or prescribed by the Code preliminary to or during the course of the trial of the case before the final order has actually been made. In this connexion I am in agreement with the view expressed by Mackney J. in Ko Kyan swe v. U Ba. (1935) 22 A.I.R. Rang 341. In that case the learned Judge observed that:

It has been argued that Section 148,Civil P.C., could be applied in the present case. That Section relates to matters arising in the course of proceedings under the Code; it can have no reference to orders of the Court embodied in a decree at the termination of such proceedings.

6. The cases to which reference has already been made were, of course, decided under the provisions of the Code of Civil Procedure, but even in such cases the correct view of the law, which appears to have been expressed in Kshetra Mohon Ghose v. Gour Mohon : AIR1934Cal21 , seems to be to the effect that a Court has no jurisdiction to modify an order of a final nature which has been passed by such Court unless proper proceedings are taken for the review of such an order. In any view of the matter, I do not think that Section 148, Civil P.C., could apply to an order such as that which we are now discussing, in which an extension of time was granted in respect of an act prescribed by Section 174(3)(b), Ben. Ten. Act, as Section 148, Civil P.C., only authorizes an enlargement of time in respect of acts prescribed or allowed by that Code.

7. As regards the order of the trial Court dated 30th November 1938, it was obviously the intention of the learned Munsif that it should be an order of a final character under Section 174(3)(b), Ben. Ten. Act, and there was no necessity for any further reference to the Code for the purpose of implementing it. This being the case, I adhere to the views which I expressed in. connexion with certain similar cases in Mahammed Asraf Ali v. Nabijan Bibi : AIR1939Cal581 and in Girish Chandra Das v. Sm. Annadamoni Dasi : AIR1939Cal309 . Even although the application for extending the time for making the deposit was made within the period mentioned in the order of the learned Munsif dated 30th November 1988, I consider that, owing to the final character of that order, he had no jurisdiction to vary it unless proper steps were taken to review this order under the provisions of Order 47, Rule 1, Civil P.C. This rule must accordingly be discharged with coats. The hearing fee is assessed at one gold mohur.


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