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Bengal Central Bank Ltd. Vs. Bezon and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberOrdinary Original Suit No. 1088 of 1947
Judge
Reported inAIR1951Cal299
ActsCode of Civil Procedure (CPC) 1908 - Section 148
AppellantBengal Central Bank Ltd.
RespondentBezon and Co. and anr.
Appellant AdvocateP.P. Ghose, Adv.
Respondent AdvocateP.K. Sen, Adv.
DispositionApplication dismissed
Cases ReferredSew Kissendas v. Ratanlal
Excerpt:
- .....decree was passed on 27-7-1946. on 1-2-1949, on an application by the plaintiff, sinha j. passed a final decree and directed that the property in question would not be sold in execution of the decree for six months. he further ordered that if the petitioner, who is defendant 2, paid a sum of rs. 5000 within that period, the said property would not be sold for another six months.2. the petitioner states that owing to the reasons set forth in his petition, he could not pay the sum of es. 5000 within the period mentioned in the decree. he says that defendant 1, who was his son-in-law and who was the real debtor, died in july 1949. he is negotiating with a party who is willing to advance rs. 5000 on the security of his calcutta property. therefore he asks that the time fixed by the said.....
Judgment:

Chatterjee, J.

1. This suit was instituted for the recovery of a large sum of money and for the declaration of charge on certain Calcutta premises. The preliminary decree was passed on 27-7-1946. On 1-2-1949, on an application by the plaintiff, Sinha J. passed a final decree and directed that the property in question would not be sold in execution of the decree for six months. He further ordered that if the petitioner, who is defendant 2, paid a sum of Rs. 5000 within that period, the said property would not be sold for another six months.

2. The petitioner states that owing to the reasons set forth in his petition, he could not pay the sum of Es. 5000 within the period mentioned in the decree. He says that defendant 1, who was his son-in-law and who was the real debtor, died in July 1949. He is negotiating with a party who is willing to advance Rs. 5000 on the security of his Calcutta property. Therefore he asks that the time fixed by the said decree or order dated 1-2-1949, for payment of Rs. 5000 be extended for another two months and leave be given to him to pay the balance of the decretal amount within six months thereafter.

3. The question is whether this Court has got any jurisdiction to make the order asked for. Mr. P. P. Ghose, counsel for the applicant relies on Section 148, Civil P. C. That section states 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.'

4. In my view that section has no application when the period is fixed by a final decree of the Court. Here the decree allowed time for making certain payment and it was intended to be a final decree. I am informed that the decree has been drawn up, completed and filed. In these premises I have no power to grant any further extension of time or to make any order which would be really an alteration or modification of the decree passed by Sinha. J. I have no power to review my learned brother's judgment or order or decree. In Dharmaraja Ayyar v. Srinivasa Mudaliar, 39 Mad. 876 : (A. I. R. (3) 1916 Mad. 694), it was held that Section 148 of the Code does not enable a Court to extend time for doing any act allowed by a decree.

5. In Khajeh Habibulla v. Asmotar Khatun, 27 C. W. N. 720 : (A.I.R. (10) 1923 Cal. 612), a Division Bench of this High Court has held that the Court has no inherent power to amend its own decree so as to extend time fixed by it.

6. In Ko Kyan v. U Ba, A. I. R. (22) 1935 Rang. 341 : (159 I. C. 801), it was held that Section 148 can have no reference to orders of the Court embodied in a decree.

7. In Ganga Ratan v. Chandika Prasad, A. I. R. (11) 1924 Oudh 179: (74 I. C. 573), it was held that Section 148 relates only to proceedings antecedent to the passing of the decree. After the final decree is passed, an order may be made for extension of time in execution proceedings by the execution Court. But no execution proceedings have started yet and I have my doubts as to whether an execution Court can make an order granting an extension of time in derogation of the final decree. Under Order 34, Rule 4 (2), the Court may on good cause shown and upon terms to be fixed by the Court at any time before the final decree for sale is passed extend the time for the payment of the amount found or adjudged due. There is no such power after the final decree is passed. I, therefore, uphold the contention of Mr. P. K. Sen that this application is not maintainable.

8. Mr. Ghose has cited a number of cases. In Nand Kishore Singh v. Ram Golam Sahu, 40 Cal. 955 : (18 I. C. 207), it was held that the High Court is competent to make an order to stay proceedings in execution of its decree in view of an application by the judgment-debtor to the Judicial Committee for special leave to appeal to His Majesty in Council.

9. In J.C. Galstaun v. F.E. Dinshaw : AIR1927Cal581 this Court held that in execution proceedings the Court could defer execution in exercise of its inherent jurisdiction in appropriate cases. I need not discuss all the cases which are not really relevant on the point in issue. The latest authority cited is Sew Kissendas v. Ratanlal, 52 C. W. N. 209, where a Division Bench has held that this High Court has inherent power to stay further proceedings in a suit after a certificate has been granted for appeal to the Privy Council. Those cases cited by Mr. Ghose contemplate a different set of circumstances and can have no application to the present situation before me.

10. This application is dismissed. The plaintiff will add the costs of this application to its claim.


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