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Kshetra Mohan Ghose and anr. Vs. Gour Mohan Kapali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1934Cal21,147Ind.Cas.1025
AppellantKshetra Mohan Ghose and anr.
RespondentGour Mohan Kapali
Cases ReferredAbu Muhammad Mian v. Mukut Pertab Narain
Excerpt:
- .....of the terms incorporated in the decree i think the most appropriate order would be to allow the appeal on payment of the balance of rs. 30 within seven days from this date and to disallow the appeal on failure of payment.3. this sum was not paid during the seven days of the date of the order of the lower appellate court which was passed on 30th may 1932. on 6th june 1932 the present respondent (judgment-debtor) put in a petition for time to deposit the amount ordered by the decree, and on 15th june the court allowed the appeal from the order of the munsif and allowed the application of the judgment-debtor as the sum of rs. 30 was deposited. against this order the present appeal has been preferred and it is contended on behalf of the appellant that it was not open to the lower.....
Judgment:

Mitter, J.

1. This appeal is directed against three orders of the learned Subordinate Judge of Jessore, the last of which is dated 15th June 1932. It appears that the present appellants applied to execute a solenama decree by which it was agreed that the appellant would be entitled to recover khas possession of the land in dispute in the suit in case the petitioner, the judgment-debtor, admitted that he could not pay in time and hence the Munsif who dealt with matter in the first instance disallowed the objection of the judgment-debtors. Against that order an appeal was taken to the Court of the Subordinate Judge of Jessore who made an order the material portion of which is as follows:

If the payment of Rs. 30 be not made according to the above direction the appeal shall stand dismissed with costs.

2. The direction was that it was to be paid within seven days from the date of the order. The direction given is substantially as follows:

So apart from the question of legality of the terms incorporated in the decree I think the most appropriate order would be to allow the appeal on payment of the balance of Rs. 30 within seven days from this date and to disallow the appeal on failure of payment.

3. This sum was not paid during the seven days of the date of the order of the lower appellate Court which was passed on 30th May 1932. On 6th June 1932 the present respondent (judgment-debtor) put in a petition for time to deposit the amount ordered by the decree, and on 15th June the Court allowed the appeal from the order of the Munsif and allowed the application of the judgment-debtor as the sum of Rs. 30 was deposited. Against this order the present appeal has been preferred and it is contended on behalf of the appellant that it was not open to the lower appellate Court to extend the time for the payment of Rs. 30 which was fixed by the decree of the Court. In support of this contention reference was made to several cases which lay down that Section 148, Civil P. C, does not entitle the Court to extend time fixed by a decree in a suit. Reference may be made to the decision in the case of Suranjan Singh v. Ram Bahal Lal (1913) 35 All 582, to a decision of this Court in the case of Bibi Sharofan v. Mahomed Habibuddin (1911) 10 IC 148, and to a decision of the Madras High Court in the case of Dharmaraja Ayyar v. K.G. Srinivas Mudaliar AIR 1916 Mad 694. The Patna High Court, however, takes a different view. But it seems that the attention of the Patna High Court was not drawn to the Allahabad decision. The decision of the Patna High Court was in the case of Abu Muhammad Mian v. Mukut Pertab Narain AIR 1916 Pat 268. Having regard to the preponderance of the judicial authority in favour of the contention of the appellants we think that the appeal should be allowed and the order of the Subordinate Judge allowing the appeal against the order of the Munsif should be set aside. The result is that the order of the Munsif dated 19th December 1931 is restored. No order is made as to costs as the respondent does not appear.

M.C. Ghose, J.

4. I agree. The learned Subordinate Judge in disposing of the appeal stated thus in his judgment dated 30th May 1932:

If the payment of Rs. 30 be not made according to the above direction the appeal shall stand dismissed with costs. Pleader's fee Rs. 4.' This was an express order of the Court that unless payment was made within seven days from the date of the decree the appeal would stand dismissed. After such a solemn order it was not open to the learned Subordinate Judge to vacate the order and extend time to the judgment-debtor. He could only have done so on a review after hearing both sides on the matter. The order of extension of time passed upon the judgment-debtor's petition without a proper review appears to mo to be wrong.


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