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Bajranglal Jhunjhunwalla Vs. Sm. Solaki Marwarini and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 223 of 1950
Judge
Reported inAIR1950Cal564,54CWN933
ActsCode of Civil Procedure (CPC) , 1908 - Section 148 - Order 9, Rule 9
AppellantBajranglal Jhunjhunwalla
RespondentSm. Solaki Marwarini and anr.
Appellant AdvocateJagdish Ch. Ghose, Adv.
Respondent AdvocatePrasun Ch. Ghose, Adv.
Cases ReferredMuhammad Asraf Ali v. Nabijan Bibi
Excerpt:
- .....day's time only to deposit the money. the order is, 'heard pleader. the prayer is considered and time is allowed, 11th february 1950 for depositing the amount failing which the miscellaneous case shall stand dismissed,' in other words, after hearing the parties the munsiff finally granted one day's extra time. he had seisin of the case and, in fact, the parties were present and were heard on the question. 3. the petitioner here relies on the decision of edgley j. in the case of muhammad asraf ali v. nabijan bibi, 43 c. w. n. 417 : (a. i. r. (26) 1939 cal. 581) for a contention that the order of 30th january here was a final order and could not be altered by the learned munsiff except by way of formal review. it is to be noted that in the case considered by edgley j. the facts were that.....
Judgment:

Roxburgh, J.

1. This is a rule against an order of the Munsiff of Asansol in relation to a proceeding under Order 9, Rule 9, Civil P. C. On 30th January 1950, he passed the following order : 'That the miscellaneous case be allowed on contest provisionally. The petitioners to pay Rs. 35 to the opposite party No. 1 by 10th February 1950 upon which the suit will be restored to file, In default, the miscellaneous case shall stand dismissed.'

2. On 10th February the petitioner in the miscellaneous case asked for further time to deposit the amount of Rs. 35. This was refused, the order being, 'the petitioner must pay the money to-day failing which the miscellaneous case stands dismissed. The petition is rejected.' Later on, on the same day the petitioner filed another petition asking for one day's time only to deposit the money. The order is, 'Heard pleader. The prayer is considered and time is allowed, 11th February 1950 for depositing the amount failing which the miscellaneous case shall stand dismissed,' in other words, after hearing the parties the Munsiff finally granted one day's extra time. He had seisin of the case and, in fact, the parties were present and were heard on the question.

3. The petitioner here relies on the decision of Edgley J. in the case of Muhammad Asraf Ali v. Nabijan Bibi, 43 C. W. N. 417 : (A. I. R. (26) 1939 Cal. 581) for a contention that the order of 30th January here was a final order and could not be altered by the learned Munsiff except by way of formal review. It is to be noted that in the case considered by Edgley J. the facts were that the application for extension of time was made after the time had expired. It is true that some of the reasonings of the learned Judge in support of his order would also cover a case such as the present were the application for extension of time was made before the expiry of the order.

4. In my opinion, however, it is clear from the order of 30th January that it was in part of a provisional nature as the learned Munsiff himself expressed it. I do not think it can be said that he had entirely by his order divested himself of the power given under Section 148, Civil P. C., to alter the form of his provisional order, that is to say, to extend the time. On 10th February he first passed the order saying that the amount must be paid within that day and then finally allowed a day, each time repeating that on failure of deposit the suit will stand dismissed.

5. Once the period has expired and the order of dismissal has operated, then, clearly it can be said that whatever may be provided in Section 148, Civil P. C. after the suit has actually been dismissed the Court has no jurisdiction to alter the order of dismissal except by way of formal review. With great respect, I think it is going a little too far to say that orders in the form of the order passed by the Munsiff here on 30th January are complete final orders. The orders are, as it were, in two parts with a condition and, in my opinion, so long as the actual order of dismissal has not operated, the Court has still seisin of the case and has still jurisdiction to make use of the powers given under Section 148, to extend the time. No case has been cited before me in which it has been held that an application for extension of time made within time cannot be allowed.

6. The result is that this rule is discharged. I make no order as to costs.

7. I am asked to point out that the point raised in para, 6 of the petition to this Court has not been agitated here and is still open.


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