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Jaynal Haldar Vs. Khorsed Sheikh - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1477 of 1980
Judge
Reported inAIR1982Cal118,85CWN984
ActsCode of Civil Procedure (CPC) , 1908 - Section 47
AppellantJaynal Haldar
RespondentKhorsed Sheikh
Appellant AdvocateDilip Kumar Seth, Adv.
Respondent AdvocateAloke Chakraborty, Adv.
DispositionApplication rejected
Cases ReferredBhutnath Das v. Sahodeb Chandra
Excerpt:
- .....and hence the suit.3. the defendant put in defence for contesting the suit. but eventually the suit was decreed on compromise filed on 13-7-1979 and the solenama was recorded on 1-9-1979.4. in terms of the solenama the defendant agreed to pay a sum of rs. 700 within 15th of falgoon 1384 b. s. intwo equal instalments payable at the interval of one year each in default the plaintiff was at liberty to apply for execution of the decree and to have the sale deed executed in his favour through court on deposit of rs. 200.5. on 14-3-1978 corresponding to 30th falgoon 1384 b. s. the defendant made an application for extension of time for depositing the said sum of rs. 700/-, a copy of which was served on the advocate of the plaintiff. as no objection was raised the learned court below.....
Judgment:
ORDER

Sudhindra Mohan Guha, J.

1. This application for revision arises out of an order dated December 22, 1979 passed by Shri K. Ganguly, Munsif 3rd Court, Diamond Harbour, disallowing an objection under Section 47 of the Code of Civil Procedure which was numbered as Misc. Case No. 72A of 1979.

2. The facts giving rise to the filing of the objection under Section 47 of the Code of Civil procedure may be summarised as follows :--

The opposite party as plaintiff on 17-7-1973 instituted a suit being Title Suit No. 517/73 for specific performance of contract in the 3rd Court of the Munsif, Diamond Harbour, against the present petitioner. The plaintiff's case inter alia was that the defendant agreed to sell the suit property for a consideration of Rs. 1500/- and accepted a sum of Rs. 1300/- and executed an agreement for sale on 9-3-1972 corresponding to 25th Falgoon 1378 B. S. that the transaction was to be completed within 15th Chaitra B. S. on receipt of the balance of RE. 200/- but in spite of successive offers by the plaintiff the defendant failed and neglected to complete the transaction and ultimately refused and hence the suit.

3. The defendant put in defence for contesting the suit. But eventually the suit was decreed on compromise filed on 13-7-1979 and the Solenama was recorded on 1-9-1979.

4. In terms of the Solenama the defendant agreed to pay a sum of Rs. 700 within 15th of Falgoon 1384 B. S. intwo equal instalments payable at the interval of one year each in default the plaintiff was at liberty to apply for execution of the decree and to have the sale deed executed in his favour through court on deposit of Rs. 200.

5. On 14-3-1978 corresponding to 30th Falgoon 1384 B. S. the defendant made an application for extension of time for depositing the said sum of Rs. 700/-, a copy of which was served on the Advocate of the plaintiff. As no objection was raised the learned court below extended the time and on court's order the petitioner deposited the said amount in court.

6. But in spite of the fact the opposite party plaintiff deliberately and willfully executed the decree and got the Kobala through court on deposit of Rs. 200/- and thereafter was threatening to take possession of the suit tank. Accordingly the petitioner made an application under Section 47 of the Code of Civil Procedure. The plaintiff filed written objection to the said application under Section 47 of the Code of Civil Procedure. By an order dated 22-12-1979 the learned Munsif rejected the said application under section 47 of the Code of Civil Procedure holding inter alia that the learned court below had no jurisdiction to extend the time to the petitioner for making deposit of Rs. 700/-.

7. Mr. Dilip Kumar Seth, learned Advocate appearing for the petitioner contends that without setting aside or recalling the order extending the time, the learned court below had no jurisdiction to entertain the execution proceeding simply by holding that the earlier order was without jurisdiction. It is further contended that the learned court below could not go beyond the decree which stood concluded on the deposit of the amount within the extended time in view of the contingency imposed. Again the learned Munsif was said to have acted without jurisdiction in going behind the decree.

8. Mr. Aloke Chakraborty, the learned Advocate for the opposite party contends that the suit in question was decreed on compromise. The notice for extension of time by the petitioner was served on the Advocate for the plaintiff at a time when he was functus officio. It is contended by him that after a decree on compromise, extension of timecould be allowed by the court only on the consent of the parties. In the absence of such consent the court had no jurisdiction to extend the time and as such the order having been passed without the consent of the plaintiff, was without jurisdiction. Accordingly the court acted justly and properly in ignoring the order permitting extension of time as that order was without jurisdiction.

9. It appears that under the terms of the Solenama the defendant petitioner was required to Pay Rs. 350/- by 15th Falgoon 1383 B. S. and the balance of Rs. 350/- by 15th Falgoon 1384 B. S. It was specifically mentioned in the terms of the Solenama 'the time was the essence of the contract' and in failure of such payment of Rs. 700/- the Opposite party plaintiff would deposit Rs. 200/- and would have the Kobala executed through court by way of execution of the decree.

10. The question now arises whether on the basis of such terms of agreement or contract the court could extend the time for making deposit. It is said that a copy of the petition had been served on the Advocate of the plaintiff but it is rightly pointed out by Mr. Chakraborty, after the decree of the suit the learned Advocate became functus officio.

11. As the decree was passed on consent without the consent of the plaintiff: the learned Court below could not extend the time ex parte. So before extending the time the court could have secured the consent of the plaintiff, without doing so the court had no power Or jurisdiction to change, vary or alter the terms of the Solenama decree.

12. Next question arises whether the order extending the time to make deposit is binding on the plaintiff or the court itself. It is apparent that the said order was passed without jurisdiction and as such the court need not pass any order vacating or expunging the order of extending the time. No notice be taken of such order.

13. Reference may be made to the decision of a Division Bench of this Court in the case of Bhutnath Das v. Sahodeb Chandra panja, reported in : AIR1962Cal485 In this case the question was whether a trial court after it had ordered specific performance of a contract on a sum of money being putin within a specified time and also ordered that if the money be not deposited within that date, the suit would stand dismissed, had any jurisdiction thereafter to extend the time. It was held that in such circumstances, the court had no jurisdiction to extend the time. The facts of the present case are stronger even. In this case the terms of the Solenama were recorded by the court and the decree was passed in terms of the Solenama. In this view of the matter without the consent of the other party, the court had absolutely no jurisdiction to extend the time for making the deposit of money. It also follows that after the Solenama decree, the Court lost seisin of the suit altogether and as such there was no scope for extension of time.

14. As found out earlier the order extending the time was without jurisdiction, and as such the learned court below committed no error in overruling the objection under Section 47 of the Code of Civil Procedure.

15. In the result, this application for revision is rejected and the Rule is discharged. Each party to pay and bear its own costs.


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