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Shashi Bhushan Banerjee Vs. Charushila Debi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in36Ind.Cas.809
AppellantShashi Bhushan Banerjee
RespondentCharushila Debi
Excerpt:
civil procedure code (act v of 1908,), order xxi, rules 89, 90 - agreement between auction-purchaser and judgment-debtor for setting aside sale--extension of time by court--jurisdiction--appeal. - .....the court and would remain so until the rights of the parties had been finally adjusted. prom time to time the time for performing that argument was extended by consent finally no further extension was obtained. then the munsif against the will of the decree-holder extended the time for performing that agreement and allowed the judgment-debtor to get back his property on the terms of the agreement which the judgment-debtor had broken and not performed on his own part the learned district judge very rightly appreciating those facts, said that it was impossible for the court to assist the person who deliberately accepted the agreement and committed a breach of it. the judgment-debtor obtained this rule. there is very little to say in favour of the case. the only point is as to whether.....
Judgment:

APPEAL No. 533

1. It is admitted in this case that no appeal lies from the order of the learned District Judge. The appeal therefore must be dismissed with costs--one gold mohur.

ROLE NO 315.

2. This is a Rule calling upon the opposite party to show cause why the order complained of should not be set aside. The petitioner before us is the judgment-debtor. A decree had been passed against him for about Rs. 700. A property said to be to the extent of 150 big has was attached and sold in execution of that decree. The purchaser was the decree-holder and the purchase-money was Rs. 250. The delivery of possession was made on the 2nd May 1914. Then the judgment-debtor came forward with an application under Order XXI Rule 90, Code of Civil Procedure. On that application the decree-holder who was the purchaser seems to have treated the judgment-debtor not unfairly. He said that if he got the whole amount of the decree within a certain time he could be willing to give back the property to the judgment-debtor. The judgment-debtor accepted that offer and therefore except for giving effect to the agreement the duty of the Court had come to an end, although of course the proceedings were properly pending before the Court and would remain so until the rights of the parties had been finally adjusted. Prom time to time the time for performing that argument was extended by consent finally no further extension was obtained. Then the Munsif against the will of the decree-holder extended the time for performing that agreement and allowed the judgment-debtor to get back his property on the terms of the agreement which the judgment-debtor had broken and not performed on his own part The learned District Judge very rightly appreciating those facts, said that it was impossible for the Court to assist the person who deliberately accepted the agreement and committed a breach of it. The judgment-debtor obtained this Rule. There is very little to say in favour of the case. The only point is as to whether an appeal lay to the learned District Judge. It seems to be quite clear that the application having been made under Order XXI Rule 89 or 90 one of the two an appeal clearly lay to the District Judge. Now what are the grounds on which we are asked to revise that proceeding On the ground that the learned Judge made a mistake of law in saying that the Munsif was not competent to extend the time that the parties themselves had fixed by agreement for performing the contract. So far from making a mistake of law the learned Judge was obviously right. But even if he were wrong we cannot revise the order of the final Appellate Court on the ground that the learned Judge of the final Appellate Court has made a mistake of Jaw The present Rule fails and must be discharged with costs--one gold mohur.


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