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Syed Muhammed Asraf Ali Vs. Nabejan Bibi W/O Imanali and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1939Cal581
AppellantSyed Muhammed Asraf Ali
RespondentNabejan Bibi W/O Imanali and anr.
Excerpt:
- .....time allowed with the result that' on 7th december 1937, a subsequent order was recorded by the learned munsif directing that the miscellaneous case should be treated as dismissed in the terms of the judgment, dated 26th november 1937. the judgment-debtor then appealed to the district judge, and the main ground taken in the appeal was that the learned munsif should have granted the judgment-debtor an extension of time to put in the decretal amount, on her application to that effect, which was rejected by the first court. the learned judge held with regard to this matter that section 148, civil p.c., applied and that the learned munsif had failed to exercise his judicial discretion in refusing the petitioner's prayer for extension of the time within which he might deposit the decretal.....
Judgment:

Edgley, J.

1. In this case, opposite party No. 2, Tafejjal Ahmed Choudhury, brought a rent suit against opposite party No. 1, Nabejan Bibi, and obtained a rent decree which he put into execution in Execution Case No. 687 of 1937 and in due course he brought to sale the holding of the judgment, debtor. On 7th July 1937, the judgment, debtor applied to the executing Court under Section 174, Bengal Tenancy Act, to have the sale set aside. The executing Court on 26th November 1937, passed the following order with regard to this application:

The application is allowed on contest and the sale is sec aside, provided the petitioner deposits the decretal amount within ten days hence, failing which the application shall stand dismissed.

2. No deposit of the decretal amount was made within the time allowed with the result that' on 7th December 1937, a subsequent order was recorded by the learned Munsif directing that the Miscellaneous Case should be treated as dismissed in the terms of the judgment, dated 26th November 1937. The judgment-debtor then appealed to the District Judge, and the main ground taken in the appeal was that the learned Munsif should have granted the judgment-debtor an extension of time to put in the decretal amount, on her application to that effect, which was rejected by the first Court. The learned Judge held with regard to this matter that Section 148, Civil P.C., applied and that the learned Munsif had failed to exercise his judicial discretion in refusing the petitioner's prayer for extension of the time within which he might deposit the decretal dues. He therefore allowed the appeal. It is argued by the learned advocate for the petitioner that the learned Additional District Judge was wrong in holding that Section 148, Civil P.C., applied in a case of this sort. He contends that the order of the first Court dated 26th November 1937, was a final order and that the learned Munsif had no jurisdiction to vary his order unless proper steps under the law were taken to obtain its modification by filing an application for review. I am of opinion that there is great force in this argument. From the nature of the order which was passed on 26th November 1937, it seems to be perfectly clear that the intention was that this order should be final and no further reference to the Court would be necessary for the purpose of implementing it. Its terms provide that if the decretal amount was deposited within ten days the sale would be set aside and, on failure to deposit that sum within the stipulated period, the application would stand dismissed. The terms of this order are per. fectly clear and, after having passed an order of this nature, the learned Munsif ceased to have jurisdiction over this particular matter, unless any aggrieved party filed a properly constituted application for the review of the order. This being the case, in my view, the provisions of Order 20, Rule 3, Civil P.C., would apply. This rule provides that a judgment 'when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review.'

3. The learned advocate for the opposite party argues that the order, dated 26th November 1937 is not in effect a judgment. With this contention I am unable to agree, in view of the definition of 'judgment' contained in Section 2(9), Civil P.C., which provides that 'judgment' means 'the statement given by the Judge of the grounds of a decree or order.' Section 148, Civil P.C., in my opinion, can have no application in a case of this nature, in which a final order has been passed in a judgment of a Court; and, in this view of the case, I do not think that the learned Additional Judge was correct in holding that the learned Munsif failed to exercise his judicial discretion when he refused the petitioner's prayer to extend the time within which deposit of the decretal dues might be made. In view of what I have stated above, this rule is made absolute with costs. The hearing fee in this Court is assessed at two gold mohurs.


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