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Sheik Hunai Alias Kurfanullah and anr. Vs. Sarat Chandraa Dutta - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.467
AppellantSheik Hunai Alias Kurfanullah and anr.
RespondentSarat Chandraa Dutta
Cases ReferredBodh Narain v. Mahomed Moosa
Excerpt:
bengal landlord and tenant procedure act (viii section order of 1869), section 52, construction of - extension of time--court, power of, to grant time--bengal tenancy act (viii b.c. of 1885), section 66, clause (3). - .....of that section'. it was pointed out by the learned judges in that case, that under section 52 of bengal act viii of 1869, the period of fifteen days could only be extended by the court of first instance at the time of framing the decree or by the appellate court when disposing of the appeal from the decree, but could not be extended subsequently by the court executing the decree, and it was upon that ground that the case in bodh narain v. mahomed moosa (3) was distinguished from the cases under act viii (b.c.) of 1869.3. it is contended that the very fact that sub-section (3) has been added to section 66 of the present bengal tenancy act shows the intention of the legislature. section 52 of act viii (b.c.) of 1869, however, cannot be construed with reference to sub-section (3) of.....
Judgment:

1. The respondent obtained, a decree for ejectment against the appellant for non-payment of arrears of rent under the provisions of Act VIII (B.C.) of 1869, the decree providing for ejectment unless the amount decreed was paid within fifteen days of the date of the decree. The defendant appealed against the decree and prayed for an extension of time to deposit the decretal amount. That question was considered by the Appellate Court and the prayer for extension of time was disallowed, and the appeal was dismissed. In the decree of the Appellate Court there was an express order that the defendant would be ejected' unless the amount as directed by the Court of first instance was paid within fifteen days. The defendant did not deposit the amount within fifteen days and, on the fifteenth day made an application to the Court of first instance to extend the time. The Court made an order extending the time for payment and the money appears to have been deposited on the 8th of May and accepted by the Court of first instance. On appeal by the plaintiff--the decree-holder--the lower Appellate Court set aside that order and the defendant has appealed to this Court.

2. We think, that under Section 52 of Act VIII (B.C) of 1869, the execution Court had no power to extend the time. It is true, as observed by Sir Barnes Peacock, in the case of Nobukristo Mooherjee v. Ramesssur Goopto 18 W.R. 412 (foot note), that execution may be stayed under proper circumstances by the Appellate Court, but that is explained in the latter case of Pureshnath Ghose Mundul v. Kristo Lall Dutt 23 W.B. 50, by Mr. Justice Mark by and Mr. Justice Ho mesh Chancier Mitter, where they said--It is quite clear that what is there alluded to is the action of the Appellate Court when the appeal against the original decree is before it, and not the action of the Court when the decree comes to be executed by it.' That appears to be the law under the Act of 1869. We have been referred to the case of Bodh Narain v. Mahomed Moosa 26 Order 639 : 3 C.W.N. 628 : 13 Ind. Dec. (N.S.) 1010. That case, however, was one under Section 66 of the Bengal Tenancy Act--clause 3 of which expressly (jives power to the Court to extend the time for making the payment, and the majority of the learned Judges in that case were of opinion that the extension of time authorised by Section 66, Clause (3) of the Bengal Tenancy Act can be granted by the Court after the decree and not only when framing the decree under Clause (2) of that section'. It was pointed out by the learned Judges in that case, that under Section 52 of Bengal Act VIII of 1869, the period of fifteen days could only be extended by the Court of first instance at the time of framing the decree or by the Appellate Court when disposing of the appeal from the decree, but could not be extended subsequently by the Court executing the decree, and it was upon that ground that the case in Bodh Narain v. Mahomed Moosa (3) was distinguished from the cases under Act VIII (B.C.) of 1869.

3. It is contended that the very fact that Sub-section (3) has been added to Section 66 of the present Bengal Tenancy Act shows the intention of the Legislature. Section 52 of Act VIII (B.C.) of 1869, however, cannot be construed with reference to Sub-section (3) of Section 66 of Bengal Tenancy Act of 1885. No case has been cited before us in which it has been held that the Court executing the decree under Act VIII of 1869 has power to extend the time for payment or that it can be extended by the Court of first instance where the Appellate Court has expressly refused to do so in appeal from the decree in the original suit.

4. We are accordingly of opinion that the order of the Court below is right and the appeal must be dismissed with costs. We assess the hearing fee at one gold mohur.


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