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BipIn Behari Ray and ors. Vs. Rakhal Krishna Hazra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Case NumberApplication for leave to Appeal to the Federal Court No. 17 of 1949
Judge
Reported inAIR1950Cal229
ActsCode of Civil Procedure (CPC) , 1908 - Order 45, Rule 7; ;Privy Council Rules, 1920 - Rule 9
AppellantBipIn Behari Ray and ors.
RespondentRakhal Krishna Hazra and ors.
Appellant AdvocateManindra Krishna Ghose, Adv.
Respondent AdvocateHiralal Chakravarty, ;Sarat Chandra Janah, ;Binode Behari Haldar and ;Basanta Kumar Panda, Advs.
DispositionApplication dismissed
Cases ReferredAkimuddin v. Fateh Chand (unreported P. C. A.
Excerpt:
- .....the payments were not made in time and the question arises whether this court has jurisdiction to extend the time.3. other high courts have held that by reason of the rules governing appeals to his majesty in council the high court has jurisdiction to extend the time and i am party to one of those decisions whilst sitting in the high court at patna. this court however has consistently held that the time for making the deposit under order 46, rule 7, cannot be extended and that the court has no jurisdiction to grant an application such as the present.4. this matter was considered by a bench of this court in raj kumar govind narain singh v. shamlal singh, 39 c. w. n. 651. there an application was made to cancel a certificate on the ground that the deposit had not been made in time in.....
Judgment:

Harries, C.J.

1. This is an application for extension of time to make the necessary deposit under the provisions of Order 45, Rule 7, Civil P. C.

2. Admittedly the payments were not made in time and the question arises whether this Court has jurisdiction to extend the time.

3. Other High Courts have held that by reason of the Rules governing Appeals to His Majesty in Council the High Court has jurisdiction to extend the time and I am party to one of those decisions whilst sitting in the High Court at Patna. This Court however has consistently held that the time for making the deposit under Order 46, Rule 7, cannot be extended and that the Court has no jurisdiction to grant an application such as the present.

4. This matter was considered by a Bench of this Court in Raj Kumar Govind Narain Singh v. Shamlal Singh, 39 C. W. N. 651. There an application was made to cancel a certificate on the ground that the deposit had not been made in time in accordance with the provisions of Order 46, Rule 7, Civil P. C. It was urged that the Court had a discretion to extend the time under Rule 9 of Appendix II of the Privy Council Rules of February 9, 1920. The Court was asked to refuse the application for cancellation on the ground that in its discretion the Court could extend the time. At p. 652, of the report Rankin, C. J., who delivered the judgment of the Bench observed;

'This is a question of jurisdiction. It does not seem to me possible to maintain that the Court, in its discretion under Rule 9 of the order, made on 9th day of February 1920, could refuse the application made by the respondent.

In my judgment the only order which it is open to us to make is that the certificate for the admission of the appeal dated 2nd August 1926, should be cancelled.'

5. This decision has been consistently followed. For example on 17th June 1940, a Bench of this Court consisting of Derbyshire C. J., and Mukherjee J. held in the case of Akimuddin v. Fateh Chand (unreported P. C. A. 16 of 1939), that time could not be extended. The same view has been taken by Benches of which I have been a member, an example being a case decided on 29th November 1948 (F. C. A. NOS. 5 to 10 of 1948.) No Bench has taken a contrary view in this Court and that being so we are bound to follow our own decisions and to hold that time cannot be extended for making the deposit required under Order 45. Rule 7, Civil P. C.

6. It has been suggested that the matter should be referred to a Full Bench. But it appears to me that the authorities of this Court are so consistent and are so much at variance with authorities of other Courts that this is a point that must eventually be decided by a superior tribunal. A Full Bench decision affirming a long line of decisions of this Court would only make matters worse.

7. In the result therefore this application fails and it is dismissed with costs hearing fee being assessed at two gold mohurs.

8. The certificate granting leave to appeal will be cancelled. The money which was deposited out of time must be returned by the Court to the proposed appellant.

Banerjee, J.

I agree.


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