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Narendra Nath Sannyal and ors. Vs. Uma Charan Ghosh - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal111,49Ind.Cas.272
AppellantNarendra Nath Sannyal and ors.
RespondentUma Charan Ghosh
Excerpt:
civil procedure code (act v of 1908), section 35, order vii, rule 1 - appeal--adjournment--costs, future, to pay--appeal, whether can be dismissed. - .....to give them an adjournment subject to a particular condition which they undertook to perform. the learned judge granted them an adjournment till the 6th december 1917 on condition that the appellants would give rs. 40 as adjournment costs to the respondents. it is quite obvious what the learned judge meant, namely, that, unless that condition was complied with, the adjournment would be refused. the appellants took that order. they had the benefit of it. but they did not pay any portion of this sum and, when the case came on for hearing on the 6th december 1917, the' defendants, re-cognizing that they had not complied with the condition contained in the order of the 19th november 1917, tried to arrange matters by tendering the sum of rs. 10 and asking the judge for time to pay the.....
Judgment:

1. This is a Rule obtained by the defendants calling upon the opposite party to show cause why the order of the learned Additional District Judge, dated the 6th December 1917, should not be set aside; What happened was this. The defendants were the appellants 'in a case before the learned Additional District Judge, The appeal was called on for hearing on the 19th November 1917. The appellants' Pleader was not in Court that day and be had with him all the papers. So, the defendants-appellants), who were obviously in imminent risk of shipwreck, approached the learned District Judge and persuaded him to give them an adjournment subject to a particular condition which they undertook to perform. The learned Judge granted them an adjournment till the 6th December 1917 on condition that the appellants would give Rs. 40 as adjournment costs to the respondents. It is quite obvious what the learned Judge meant, namely, that, unless that condition was complied with, the adjournment would be refused. The appellants took that order. They had the benefit of it. But they did not pay any portion of this sum and, when the case came on for hearing on the 6th December 1917, the' defendants, re-cognizing that they had not complied with the condition contained in the order of the 19th November 1917, tried to arrange matters by tendering the sum of Rs. 10 and asking the Judge for time to pay the remaining Rs. 30. We are also informed that they told the learned Judge that he might after hearing the appeal allow the other Rs. 30 in the decree as costs. The Judge declined to do that. He said that the defendants had had the benefit of the order and that having bad that benefit, they were bound to perform the condition. The order having been made subject to a condition and the condition not having been performed, the learned Judge was clearly right in holding that when the condition remained unperformed the order ceased to have any effect. In that view, the application for adjournment made on the 6th December 19i7 was rightly reamed and the learned Judge was right in dismissing the appeal for failure to carry out the condition.

2. Another matter has been raised before us. The learned District Judge stated that he dismissed the appeal for failure to carry out the Court's order. But he said nothing as to costs. Of course, the appeal having been dismissed, the usual consequences would follow unless the Judge made a separate order to the contrary. The learned Judge, however, in the decree provided that the defendants should pay to the plaintiff the costs of the appeal. The learned Judge omitted to say in his judgment, anything as regards costs; but he subsequently made an entry in the order-sheet that he intended to dismiss the appeal and direct the defendants-appellants to pay the. plaintiffs' costs. No reason has been shown why the learned Judge could not do that.

3. The present Rule is, therefore, discharged with costs, one gold mohur.


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