B.K. Guha, J.
1. This is an application for stay of all further proceedings in Title Execution case No. 177, of 1955 of the Court of the second Munsif Alipore. The defendant appellant is the petitioner before me. Against him a decree for ejectment from certain premises was obtained by the plaintiff respondent opposite party. Thereupon the defendant preferred a second appeal to this Court which is numbered as S. A. 1388 of 1955. In the meantime the plaintiff respondent started an execution case in Title Execution case No. 177 of 1955 in the Court of the second Additional Munsif at Alipore for enforcement of the decree for ejectment. The defendant petitioner applied to this Court for stay of execution of that decree and for stay of alt further proceedings in the said execution case and obtained a Rule from this Court, namely Civil Rule No. 2730(s)/55. On 8-12-55, by consent of parties that Rule was made absolute by Lahiri, J. on certain terms. Some of the said terms are reproduced below:........ (b) If within that period the petitionerdeposits in the trial court a sum of Rs. 1000/- (Rupees one thousand only) to the credit of the decree-holder opposite party, the execution will remain stayed during the pendency of the Second Appeal.
(c) Without prejudice to his rights and contentions in the appeal the petitioner will go on depositing Rs. 100/- (Rupees one hundred only) from month to month within the 15th day of the following month till the disposal of the second appeal pending in this court.
. . . . . (e) On breach of any of the conditions this Rule will stand discharged with costs. . . . .'
2. It appears that in terms of the above order the defendant petitioner deposited a sum of Rupees 1100/- in the trial court including initial deposit of Rs. 1000/- as well as Rs. 100/- towards rent for the month of December 1955. This deposit wasmade through his pleader Sri Sachindra Nath Roy. It was detected later on that deposits of rent for the months of October and November 1957 as well as for the months of April, July and September, 1958 were not made. The explanation given by the petitioner in regard to this matter is that the requisite sums of money were made over by him to the lawyer concerned in strict compliance with the order of this Court but the latter somehow did not make the necessary deposits in court and in support of this case a verified petition filed by the lawyer concerned in the lower court is relied upon. The relevant portion of that verified petition is as follows:
'That the judgment debtor did give to me Rs. 100/- in each of the months of October and November 1957 and April, July and September 1958 with strict instructions to deposit the same in your honour's Court before the 15th of each month, but unfortunately I failed to deposit the same in Court.
I, therefore, pray that the judgment-debtor may not be penalised for my laches and negligence.'
3. It was argued on behalf of the defendant petitioner that so far as he is concerned he was not to blame in any way and it was the lawyer concerned who, after all is an officer of the Court who was directly responsible for breach of the conditions which had been imposed by this court in its order dated the 8-12-55 at the time when execution was stayed conditionally.
4. The parties have filed before me elaborate affidavits and counter-affidavits and I have also heard the learned lawyers at some length. So far as the facts go. I am inclined to accept the position that the lawyer concerned was really responsible for non-deposit of the rents for the months of October and November, 1957 and April, July and September 1958. I accept further the position that so far as the defendant petitioner is concerned, he had acted in a bona fide manner and that it was really his lawyer who was responsible for failure to deposit the rents for certain months.
5. The next question that falls for decision is, whether in the circumstances as set forth above, this Court has any power to grant any relief to the defendant petitioner. On behalf of the plaintiff respondent opposite party it is contended that in view of the terms in which the order was passed by the Court on 8-12-55, namely that 'on breach of any of the conditions this Rule will stand discharged', there has been an automatic discharge of the Rule for breach of the conditions, and accordingly, it will not be proper for this Court to grant any further relief to the defendant petitioner. In support of this contention reliance has been placed upon certain cases, namely of Pulin Krishna Roy v. Susil Kumar Dey, 53 Cal WN 192, Girish Chandra Das v. Annada Moni Dasi : AIR1939Cal309 , and Kshetra Mohan Ghosh v. Gour Mohan Kapali : AIR1934Cal21 . The last case was a Bench decision of this Court and the principle that was laid down there was as follows:
'Where a certain time is fixed by a decree of the Court for taking some steps and it directs that on failure of doing so within the time limited the case should stand dismissed, the Court has no jurisdiction to extend the time limited by the decree.'
6. As against this Mr. Kalipada Sinha, on behalf of the appellant has referred to various cases out of which, I think, it will serve my present purpose if I mention two Bench decisions of this Court. One of them is the case of Kandarpa Nag v. Banwari Lal Nag, AIR 1921 Cal 356 (2). In this case a decree was passed on the basis of a compromise. One of the terms of compromise was that the plaintiff would get a decree declaring his title to 1/4th share, thathe would pay his brothers certain sums of money in two instalments by certain dates and that if payments were not made on due dates, the defendants-would become Owners of the entire property. No money was paid, however, by the plaintiffs on either of the dates mentioned and the question that ultimately fell for decision was whether the plaintiff forfeited his rights under the terms of the consent decree and whether the Court had any authority to extend the time under Section 148 of the Civil Procedure Code. In this case, it was pointed out that in certain circumstances, the court, in the exercise of its equitable jurisdiction, is competent to grant relief. Reliance was also placed upon a recent decision, in the case of Jyotish Chandra Sen v. Rukmini Ballav Sen, 62 Cal WN 588: : AIR1959Cal35 . In this case, the Court had passed an order that the additional written statement would be accepted provided a particular defendant paid a certain amount by way of costs to the plaintiff by a certain date. It was also stated further in the relevant order that 'in default of payment of costs the additional written statement will stand rejected.' I was a party to this decision and it was observed by Das Gupta, J., as he then was in this case that it was open to the Court to enlarge the period even though the period originally fixed or granted might Have expired and the fact that there is a default clause, namely, 'if the payment be not made, the application will stand dismissed' did not take away the Court's power to enlarge the lime under Section 148 of the Civil Procedure Code.'
7. In spite of some divergence of judicial opinion, so far as the facts of the present case are concerned, it may be mentioned that the relevant order was not an express condition mentioned in decree, but an order made in connection with an appeal which is still pending. Secondly, even though, the order in question was passed upon consent of the parties and on the present occasion the plaintiff respondent is withholding consent to passing any further order in favour of the defendant petitioner, that circumstance alone, is, in my opinion, not an insuperable bar to a favourable order being passed now in favour of the petitioner. In matters of this kind equitable considerations cannot be entirely overlooked, as was pointed out by Sir Ashutosh Mookerjee, A. C. J., in Kandarpa Nag's case, AIR 1921 Cal 356(2) referred to above. So far as the present case is concerned, in my view, equitable considerations are definitely in favour of the defendant petitioner.
8. Thirdly, the present application filed before me by the defendant petitioner on 29-1-59 can well be treated as a fresh application, and there is no statutory bar to the entertainment of an application like this and granting adequate relief thereunder. In this view of the matter, in order to do substantial justice between the parties I would pass a fresh-order to the Following effect:
(1) That the execution of the decree will remain unconditionally stayed for ten days from this day, (2) that if within that period the petitioner deposits in the trial Court a sum of Rs. 500/- being the rent for the months namely October and November 1957, and April, July and September 1958 to the credit of the decree-holder opposite party the execution will remain stayed during the pendency of the second appeal (3) that without prejudice to his rights and contentions in the appeal the petitioner will go On depositing a sum of Rs. 100/- from month to month within the 15th of the following month till the disposal of the second appeal pending in this Court, (4) that the security deposit executed by the petitioner in the executing Court 'will continue in force during the pendency of the second appeal in this court and (5) that On breach of anyof the conditions the stay order will stand automatically vacated without any further order being necessary.
9. If, however, the sums mentioned above be deposited by the petitioner the opposite party will have the liberty to withdraw the same without furnishing security and without prejudice to his rights therein.
10. Let the connected appeal (S. A. 1388 of 1955) be fixed for hearing on 29-4-1959.
11. The application is disposed of accordingly. But under the circumstances the defendant petitioner will have to pay costs, which are assessed at five gold mohurs, to the plaintiff opposite party.
12. Let the records be sent down as expeditiously as possible.