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Daliluddi Vs. Bakshi Bepari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal140
AppellantDaliluddi
RespondentBakshi Bepari and ors.
Cases ReferredBodh Narain v. Mahomed Moosa
Excerpt:
- .....decree in ejectment stating the arrears of rent. but sub-section (2), section 66, prohibits the decree-holder from executing the decree if the amount is paid within the specified date. if the decree is properly drawn up and if the period within which the decree-holder is prohibited under the law from executing the decree is extended by sub-section (3), section 66, then i can understand very well that the order falls within section 47, civil p.c., because that would be an order relating to the execution of the decree, and then there would be an appeal from such an order. but when the decree is drawn up as in this case directing the judgment-debtor to pay the decretal amount within a, specified time, the extension of the time would not be an order under sub-section (3), section 66.....
Judgment:

B.B. Ghose, J.

1. This is a case arising out of an order passed by the Munsif under Section 66(3), Ben Ten Act A decree was made in a suit brought by the respondents for rent and ejectment of an under-raiyat Under Sub-section (2), Section 66 of the Act a decree was passed in favour of the plaintiffs specifying the amount of the decree and the interest due Under the second part of that Sub-section it seems to me that it is not necessary to specify anything with reference to the execution of the decree, because the law provides that the decree should not be executed if the amount of the decree and the costs of the suit are pard into Court within 15 days or on the re-opening day, if the Court is closed on the fifteenth day Under Sub-section (3) the Court may for special leasons extend the penod of 15 days The Munsif extended the time On appeal to the Subordinate Judge he held that the time was wrongly extended and he set aside the order of the lower Court extending the time From that order the present appeal is preferred by the judgment-debtor

2. The first objection taken is that there is no appeal against the order of the Munsif to the lower appellate Court It is argued on behalf of the respondents relying upon the observations of the learned Judges in the case of Bodh Narain v. Mahomed Moosa [1899] 26 Cal. 689, that there would be an appeal, as the order fell within the provisions of Section 47, Civil P.C. The decree in the present case stated the amount due to the plaintiffs and it further ordered that the judgment-debtor do pay the specified amount within 15 days and on failure to do that he would be liable to be ejected. As I read the provisions of Sub-section (2), Section 66, it does not contemplate the decree to be drawn up in that form. The decree would be an ordinary decree in ejectment stating the arrears of rent. But Sub-section (2), Section 66, prohibits the decree-holder from executing the decree if the amount is paid within the specified date. If the decree is properly drawn up and if the period within which the decree-holder is prohibited under the law from executing the decree is extended by Sub-section (3), Section 66, then I can understand very well that the order falls within Section 47, Civil P.C., because that would be an order relating to the execution of the decree, and then there would be an appeal from such an order. But when the decree is drawn up as in this case directing the judgment-debtor to pay the decretal amount within a, specified time, the extension of the time would not be an order under Sub-section (3), Section 66 extending the time specified within which the decree-holder was prohibited from executing the decree. It is an order varying the terms of the decree. It seems to me at least doubtful whether the Court had any jurisdiction to vary the decree in that way.

3. The learned advocate for the respondents, however, points out that in the case above cited, reported as Bodh Narain v. Mahomed Moosa [1899] 26 Cal. 639, the decree was apparently drawn up in the same terms as in this case, as is shown from the facts stated at the top of p 640 (of 26 Cal ) of the report, and it is argued that in that case it was held by the learned Judges that the matte? fell within Section 242 of the Code of 1832 (now Section 47) With some diffidence I think that there is some fallacy in the argument. If the Munsif had no jurisdiction to extend the time as I think he had not, then there would be no appeal to the Subordinate Judge from that order and it can only be set right by an application for revision. But I may assume that there-was an appeal. Assuming that to be so and although the defendant judgment-debtor does not seem to have acted with promptitude in this matter it seems to me that no sufficient ground has been made out for interfering with the order of the Munsif.

4. I would set aside the judgment of the Subordinate Judge and restore that of the Munsif. I understand that the amount of Rs. 15 odd has been deposited by the judgment-debtor. Having regard to the facts of this case the judgment-debtor is-not entitled to any costs in any of the Courts.

Bose, J.

5. I agree.


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