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Nikhil Kumar Saha Vs. Hedayat Ali Molla and anr. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 2219 of 1978
Judge
Reported inAIR1983Cal401,86CWN766
ActsCode of Civil Procedure (CPC) , 1908 - Section 148
AppellantNikhil Kumar Saha
RespondentHedayat Ali Molla and anr.
Appellant AdvocateGopal Chandra Mukherjee, Adv.
Respondent AdvocateM. Ahmed, Adv.
DispositionPetition allowed
Cases ReferredBhutnath Das v. Sahadeb Chandra
Excerpt:
- .....not deposit the same and he prayed for time for one month. the said application was heard by the learned munsif on may 25, 1978. by the order dated june 1, 1978 the learned munsif rejected the application on the ground that the court had no jurisdiction to extend the time for deposit of the money the petitioner has challenged the said order of the learned munsif in the present rule. 3. the learned advocate for the petitioner has contended that the learned munsif was wrong in holding that he had no jurisdiction to extend the time. the application was filed before the expiry of the period limited by the decree and in view of the decision of the supreme court in : [1961]3scr763 (ma-hanth ram das v. ganpa das) and the decision of the calcutta high court in : air1971cal243 (sm lakshmi bala.....
Judgment:
ORDER

S.N. Sanyal, J.

1. The petitioner Nikhil Kumar Saha filed a suit for specific performance on May 16. 1975 on the allegation that the opposite party No. 1 agreed to sell the disputed land to the petitioner for Rs. 2,300/- and executed and registered an agreement for sale on August 12, 1974 on receipt of the sum of Rs. 1,000/-. The opposite party No. 2 is related to the opposite party No. 1. Opposite party No. 2, though aware of the agreement for sale, obtained a fictitious deed of sale from the opposite party No. 1. In spite of repeated demands of the petitioner, they refused to execute any deed of sale. The petitioner thereafter instituted the suit. On April 4, 1978 the suit was decreed on the following terms:

'That the suit and the same is hereby decreed on contest with costs against the deft. No. 2 and decreed ex parte without costs against the deft. No. 1. The plaintiff be entitled to have the al-leged contract specifically enforced against the defts. The plaintiff shall deposit RS 1,300/- to the credit of the deft. No. 1 as the balance consideration money within 30 days from this date. The deft. No 1 shall execute and register the document within one month from the date of such deposit by the pltff. In default of the aforesaid deposit, the suit shall stand dismissed. If the deft, fails to execute and register the document within the time mentioned above, the pltff. shall be at liberty to have the document executed and registered through court. The plaintiff also to get possession after the conveyance has been executed.'

2. On May 3, 1978 the petitioner filed an application for extension of time for one month for the deposit on the ground that the petitioner's father used to look after the suit and as he was confined to bed he could not inform the petitioner about the iudgment. The petitioner received the information on May 3, 1978 about the direction for deposit. As he had not the requisite money with him, he could not deposit the same and he prayed for time for one month. The said application was heard by the learned Munsif on May 25, 1978. By the order dated June 1, 1978 the learned Munsif rejected the application on the ground that the Court had no jurisdiction to extend the time for deposit of the money The petitioner has challenged the said order of the learned Munsif in the present Rule.

3. The learned Advocate for the petitioner has contended that the learned Munsif was wrong in holding that he had no jurisdiction to extend the time. The application was filed before the expiry of the period limited by the decree and in view of the decision of the Supreme Court in : [1961]3SCR763 (Ma-hanth Ram Das v. Ganpa Das) and the decision of the Calcutta High Court in : AIR1971Cal243 (Sm Lakshmi Bala Chanak v. Brojendra Nath Pain) the learned Munsif had jurisdiction to deal with the application. The learned Advo-cate argues that the learned Munsif failed to exercise jurisdiction and there has been failure of justice. The learned Advocate has further contended that the decision in B. Ganpati's case : AIR1974Bom104 on which the learned Munsif has relied, does not apply to the present case

4. The learned Advocate for the opposite party has submitted that the learned Munsif was correct in holding that in view of the terms of the decree, the court had no iurisdiction to entertain an application for extension of time. The learned Advocate has argued that the case of B. Ganpati v. S, Raja-ram : AIR1974Bom104 lays down the principles of law applicable in such a case. The learned Advocate has further argued that the court had lost seisin of the case and it was not within the competence of the Court to extend the time. In support of his contention the learned Advocate has referred to the case of Debi Prosad Trivedi v. Deb Kumar Singhi : AIR1981Cal254 . The learned Advocate for the opposite party has v also referred to the case of New Banga-sree Bastralaya v. Ramanlal Phurma Karta (AIR 1976 Cal 335).

5. In the instant case the application for extension of time was filed on May 3, 1978, that is, before the expiry of the period limited by the decree. In B. Ganpati's case : AIR1974Bom104 the application was filed after the expiry of the period and as such it is clearly dis-tinguishable from the instant case. In that case it was held, following an un-reported Bench decision of the Bombay High Court, that the failure on the part of the plaintiff to carry out the terms of the decree had automatically resulted in the disposal of the suit and the Court had become functus officio and had no power to grant an extension of time fixed by the decree.

6. In Debi Prasad's case : AIR1981Cal254 (supra) it has been held, following the case of Bokaro and Ramgur Ltd. v. State of Bihar : AIR1965Cal308 , that if the Court has lost seisin of the case altogether, there was no scope for the application of Section 151 of the Civil P. C. and that it is only if the Court had retained jurisdiction in the litiga-tion that the question of making any order in the exercise of inherent jurisdiction arises.

7. In New Bangasree's case (AIR 1976 Cal 335) time was allowed to furnish security even though the application had been filed a few days after the expiry of the time granted by the Court.

8. In Lakshmi Bala's case : AIR1971Cal243 (supra), it was held that the Court had power to extend time under Section 148, C. P. Code even after the time fixed by the Court in the decree had expired.

9. In the case of Bokaro and Ramgur Ltd v. State of Bihar : AIR1965Cal308 the principles of law laid down in Bhutnath Das v. Sahadeb Chandra : AIR1962Cal485 were followed. In Bhut-nath's case the plaintiffs failed to put in the money within the time specified and thereafter made an application under Section 148 read with Section 151 of the Civil P. C. for extension of time to put in the money. It was held that if the Court had not lost seisin of the suit then only it might exercise its inherent jurisdiction and extend time.

10. In : AIR1965Cal308 it has been held that where a decree is passed on condition that if a certain sum of money be put in within a specified time, the suit would stand decreed and in default thereof the suit would stand dismissed; in such a case after the expiry of the time limited by the decree, the Court loses seisin over the matter and cannot extend the time.

11. It appears that after the expiry of the time limited by the decree the Court has no power to extend time as it loses seisin of the case. The material point, thus, is whether the Court was in seisin of the case when the petitioner's application for extension of time was filed. The period limited by the decree had not expired on that date and thus the Court was in seisin of the case. The Court had not become functus officio and it had jurisdiction to entertain the application for extension of time. The fact that the petitioner's application was heard after the expiry of the period limited by the decree would be of no moment. Any order passed on the said application even after the time fixed by the original judgment would operate from May 3, 1978.

12. The learned Munsif has failed to exercise jurisdiction and the petitioner has suffered irreparable injury. The application of the petitioner for extension of time should have been heard on merits.

13. In the result, the Rule is made absolute and the impugned order is set aside. The learned Munsif is directed to dispose of the petitioner's application in accordance with law as early as possible. There will be no order as to costs. Let the records be sent as quickly as possible.


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