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Abinash Chandra Das and ors. Vs. Hem Kumari Dasi Wife of Basanta Kumar Biswas - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.609
AppellantAbinash Chandra Das and ors.
RespondentHem Kumari Dasi Wife of Basanta Kumar Biswas
Excerpt:
civil procedure code (act v of 1908), section 148, schedule ii, para. 16 - award, fixing time for payment--court, whether can extend time. - .....award having been filed in court in the ordinary way arid a decree having been passed thereon. the learned judge of the court below held that he had power to extend the time fixed by the award, that the payment into court on the 4th june 19l4 of rs. 3,600 was a good payment and that, therefore, the defendant no. 1 had complied with the terms of the award. it may be noticed in passing that the first defendant did riot pay any portion of the rs. 3,600 to the plaintiff within the time fixed by the award. the learned judge held, however, that he had power to extend the period fixed by the award. in my opinion, he had not the power to do so. the statement in russell on arbitration which may be taken as a correct statement of the law on the point is to this effect. i read from the chapter i,.....
Judgment:

Fletcher, J.

1. This is an appeal from an order of the learned Subordinate Judge of Nadia, dated the 18th March 1915. The appeal is preferred against an order, dismissing an application for execution. The facts are as follows: The defendant No. 2 in the month of January 1901 mortgaged a certain property to the plaintiff to secure the sum of Rs. 4,750. A suit was brought on the mortgage and it was decreed for the sum of Rs. 7,000. In execution of that decree the property was put up for sale and purchased by the plaintiff, the mortgagee, for the sum of Rs. 5,800 On attempting to take possession the plaintiff was resisted by the defendant No. 1, on the allegation that she (defendant No. 1) had a lease of the property after the date of the mortgage for a term of eleven years expiring in the year 1322 B.S. So her lease has now wholly expired. The plaintiff then instituted a suit for possession. By agreement between the parties the matter in dispute was referred to arbitration. The arbitrators duly made their award on the 3rd December 1913 and the award was as follows: 'Our award on the issues considered together is that the plaintiff should get khas possession of the properties in suit by evicting the defendants, unless the defendant No. 1 pays to the plaintiff Rs. 3,600 including costs and interest within six months from this date.' No money was paid in accordance with the 'terms of the award within the six months allotted, which expired on the 3rd June 1914. On the 4th June 1914, the sum of Rs. 3,600 was, however, paid into Court. No payment having been made up to the 3rd June 1914, on the 5th June 1914, the plaintiff applied for possession in accordance with the terms of the award, the award having been filed in Court in the ordinary way arid a decree having been passed thereon. The learned Judge of the Court below held that he had power to extend the time fixed by the award, that the payment into Court on the 4th June 19l4 of Rs. 3,600 was a good payment and that, therefore, the defendant No. 1 had complied with the terms of the award. It may be noticed in passing that the first defendant did riot pay any portion of the Rs. 3,600 to the plaintiff within the time fixed by the award. The learned Judge held, however, that he had power to extend the period fixed by the award. In my opinion, he had not the power to do so. The statement in Russell on Arbitration which may be taken as a correct statement of the law on the point is to this effect. I read from the Chapter I, page 307, of the Ninth Edition: 'A valid award on a voluntary reference is a final and conclusive judgment as between the parties respecting all the matters referred by the submission. It binds the rights of the parties for all time without appeal both as to fact and law;' and again in the same chapter at page 318 the learned author states. 'Upon an award for the payment of money at a particular time and place, the party who is to pay ought to come and tender the money at the time and place even if the other party be not there to receive it.' It is quite clear that the arbitrators were acting within their powers when they directed that the payment should be made within six months from the date of their award, and that being their judgment, it is binding and conclusive on all the parties and the Court is not authorized to interfere with that portion of the award any more than with any other portion of the award. The learned Judge clearly bad no jurisdiction to extend the time on the ground that the case was a hard One. As to whether the case is a hard one, it may be doubted whether it is so. This lady, the defendant No. 1, had a lease for eleven years which has now expired. The right of redemption that was given to her was clearly for the purpose of supporting that lease for eleven years, which she would be deprived of by the plaintiff having purchased in execution of a decree on his mortgage which was executed prior to her lease. But that reason has now ceased to exist. The lease has now come to an end and the defendant No. 1 has enjoyed all the rights that she had under that lease which is not binding as against the plaintiff. I think that the learned Judge was wrong when he extended the time fixed by the award. We, therefore, allow the appeal, set aside the order of the Court below and in lieu thereof direct that execution do issue on the terms of the award for the purpose of giving khas possession of the properties to the plaintiff. The contesting respondent must pay to the appellant his costs in this Court as well as in the Court below. We assess the hearing fee at three gold mohurs.

Newbould, J.

2. I agree.


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