Skip to content


Kaminy Mohun Somoddar Vs. Gopal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1882)ILR8Cal479
AppellantKaminy Mohun Somoddar
RespondentGopal and anr.
Excerpt:
civil procedure code (act x of 1877), section 245 - application for execution of decree,--amendment--time fixed by court--jurisdiction--ultra vires. - .....under the provisions of section 245, directed that the application should be amended, and he fixed seven days as the period within which the amendment was to be made; but the application was not amended within this period of seven days, and subsequently,--that is to say, on the 11th of may 1880,--a further application for amendment was made and allowed. now, the judge of the court below has held, with reference to the language of section 245 of the code of civil procedure, 'if the application be not so amended, it shall be rejected,' that it was compulsory upon the munsif to reject the application of the 9th april 1880, because it was not amended within the seven days allowed by the munsif's order, and that the munsif has no discretion to allow the amendment of the 11th may. we do.....
Judgment:

Field, J.

1. The question in this case is one of limitation. The original decree was dated 26th February 1877. An application for execution was made on the 20th April 1877. Within three years from this latter date,--that is to say, on the 9th April 1880,--a fresh application for execution was made; but this application was found not to be in the form prescribed by the Code of Civil Procedure. The Munsif, under the provisions of Section 245, directed that the application should be amended, and he fixed seven days as the period within which the amendment was to be made; but the application was not amended within this period of seven days, and subsequently,--that is to say, on the 11th of May 1880,--a further application for amendment was made and allowed. Now, the Judge of the Court below has held, with reference to the language of Section 245 of the Code of Civil Procedure, 'if the application be not so amended, it shall be rejected,' that it was compulsory upon the Munsif to reject the application of the 9th April 1880, because it was not amended within the seven days allowed by the Munsif's order, and that the Munsif has no discretion to allow the amendment of the 11th May. We do not concur in this construction. We think that, inasmuch as the Munsif had not rejected the application and so finally disposed of it, it was within his competency to fix a further time for making the amendment, or to allow the amendment to be made within a further time after the seven days originally fixed had elapsed. We think, therefore, that the order of the Judge must be set aside and that of the Munsif restored.

2. This appeal is decreed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //