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Surnaman Singh and anr. Vs. Sham Charan Ohdar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.689
AppellantSurnaman Singh and anr.
RespondentSham Charan Ohdar and ors.
Cases ReferredGolab Chand v. Bahuria Ram Murat Koer
Excerpt:
chota nagpur tenancy act (vi of 1908), section 178 sub-sections (2), (3) - enlargement of time--application made after execution--power of court to grant time. - .....interest and costs of the suit be paid into court within thirty days from the date of the final decree, the decree shall not be executed. sub-section (3) provides that the deputy commissioner may, for special reasons to be recorded in writing, extend the period of thirty days mentioned in sub-section (2). the appellants, who were the plaintiffs landlords in the court below, obtained a decree against the respondents on the 14th may 1909, which was drawn up in accordance with the provisions of sub-section 2 of section 178. the tenants made default in the payment of the decretal amount and the result was that on the 29th june 1909, the decree-holders applied for execution by way of ejectment. on the 3rd august following, the judgment-debtors applied for extension of time under.....
Judgment:

1. The question of law raised in this appeal depends for its solution upon the true construction of Sub-sections (2) and (3) of Section 178 of the Chota Nagpur Tenancy Act, 1908. Sub-section (2) provides that in all cases of suits for the ejectment of a non-occupancy ryot for non-payment of arrears of rent or for the cancelment of a lease for non-payment of arrears of rent, the decree shall specify the amount of the arrears and if such amount together with interest and costs of the suit be paid into Court within thirty days from the date of the final decree, the decree shall not be executed. Sub-section (3) provides that the Deputy Commissioner may, for special reasons to be recorded in writing, extend the period of thirty days mentioned in Sub-section (2). The appellants, who were the plaintiffs landlords in the Court below, obtained a decree against the respondents on the 14th May 1909, which was drawn up in accordance with the provisions of Sub-section 2 of Section 178. The tenants made default in the payment of the decretal amount and the result was that on the 29th June 1909, the decree-holders applied for execution by way of ejectment. On the 3rd August following, the judgment-debtors applied for extension of time under Sub-section (3). That application was granted and the decretal amount as directed by the Court was deposited. The amount was subsequently received by the decree-holders under protest. On behalf of the appellants the validity of the order has been challenged on three grounds, namely, first, that the application for extension of time could not be entertained by the Court executing the decree; secondly, that it could not be entertained after the expiry of the time prescribed by the decree for payment of the arrears; in any event it could not be entertained after the application for execution had been made by the decree-holder, and, thirdly, that time was extended by the Court for reasons not sufficient in law.

2. With reference to the first ground, it has been urged that a Court executing a decree is bound to execute it as it stands and can in no way alter or interfere with its terms. In support of this proposition, reliance has been placed upon the cases of Ishwaragar v. Chudasama 13 B. 106; Patloji v. Ganu 15 B. 370; Bhagwandas v. Abu Ahmed 16 B. 263 and Mahapershad Singh v. Surendra Mohan Singh 9 C.L.J. 288 : 4 Ind. Cas. 56. This contention is clearly well founded, and the proposition admits of no dispute that a Court of execution cannot alter the terms of the decree. In fact, this view was adopted by this Court in the case of Sunkur Singh v. Huree Mohun 22 W.R. 460, which turned upon the construction of Section 52 of Act VIII of 1869 (B. C) corresponding to Section 178 of the Chota Nagpur Tenancy Act, 1903, But although the argument is well founded, it is, in our opinion, wholly unsubstantial. The Court executing the decree was the Court which had tried the suit and made the decree. It has not been disputed, and in view of the provisions of Sub-section 3 of Section 178 of the Chota Nagpur Tenancy Act, 1908, it cannot be disputed, that the application could have been entertained by this very Judicial officer if it had been described as an application in the suit. It would, therefore, serve no useful purpose to hold that the application was improperly entertained and it would be an idle formality to send back the case for consideration by the same officer in the course of the suit he had tried. The decision in Thakur Madan Mohan Nath Sahi Deo v. Bhikhar Sahu 15 Ind. Cas. 719 Infra is distinguishable, as there the decree was altered in execution by a Court of appeal by consent of some of the parties and in the absence of other parties prejudiced by the variation. No doubt, as pointed out by this Court in the cases of Rao Baneeram v. Ram Nath Shaha 18 W.R. 412 : 10 B.L.R. App. 2 and Pureshnath Ghose v. Krishto Lall Dutt 23 W.R. 50; a matter of this description ought to be considered by the Court which has tried the suit, because whether or not the order for extension of time should be made in favour of the tenant depends upon the circumstances of the litigation, that is, upon the circumstances disclosed at the original trial and the - events subsequent. It is thus fairly obvious that the order can be made only by the Trial Court. But, as a matter of fact, in the case before us, the order has been made by that Court; only, it has been recorded in the order sheet not of the original suit but of the execution case. We are, therefore, of opinion that effect ought not to be given to the first contention of the appellants.

3. With reference to the second ground, it has been argued that an application for extension of time under Sub-section (3) of Section 178 must be made before the time has expired, and, in any event, before an application for execution has been presented. The learned Vakil for the appellants, who has addressed to the Court a very able and forcible argument on this part of the case, has contended that upon the expiry of the time prescribed by the decree, the tenancy is forfeited and a valuable right accues to the landlord to re-enter upon the premises. That right, it has been suggested, ought not to be taken away for the benefit of the defendant who has failed to carry out the order of the Court and has not been diligent enough to make an application for extension before expiry of the prescribed time. But we are of opinion that a narrow construction ought not to be placed upon the terms of Sub-section 3 of Section 178. It may be observed that the sub-section does not specifically prescribe the limit of time within which an application for extension of time may be made, in fact, the sub-section authorizes the Deputy Commissioner to extend the time even without an application As was explained by Mr. Justice Banerji in the case of Bodh Narain v. Mahomed Moosa 26 C. 639 : 3 C.W.N. 628, where a question arose as to the interpretation of Section 66 of the Bengal Tenancy Act, which corresponds to Section 178 of the Chota Nagpur Tenancy Act, 1908, as ejectment for non-payment of rent is in the nature of a penalty of forfeiture, the provision for extension of time for payment to avoid the penalty of forfeiture is a remedial provision and should * be construed liberally so as not to restrict the remedy and make it inapplicable to cases to which it ought obviously to extend. It was further pointed out by the same learned Judge that the section authorises the Court for special reasons to extend the period, and there is no reason why we should interpolate words so as to limit the power of the Court to make an order for enlargement of time. It is, indeed, conceivable that needless hardship may be caused to litigants if the contention of the appellant were to prevail. For instance, if the defendant, by reason of accidental circumstances over which he has no control, finds it impossible, in spite of his diligence, to deposit the decretal amount on the last day of the prescribed period, he may be driven to make an application for extension of time on the day following by reason of adverse events which he had not foreseen and which made it impossible for him to carry out the direction of the Court. There is no good reason why the section should be narrowly interpreted so as to exclude relief in such a case. We are not prepared to accept the contention of the appellants; and, in the view we take, we are supported by the principle which underlies the decisions of their Lordships of the Judicial Committee in Rajab Ali v. Amir Hosssin 17 C. 1 and Budri Narain v. Sheo Koer 17 C. 512 : 17 I.A. 1, which were applied by this Court in the case of Golab Chand v. Bahuria Ram Murat Koer 13 C.L.J. 432 : 10 Ind. Cas. 268. We hold, therefore, that it was competent to the Court to entertain an application for enlargement of time under Sub-section 3 of Section 17 4 after the expiry of the period prescribed in the decree in conformity with Sub-section 2 and even after the decree-holder had applied for execution. The second contention of the appellants must consequently be overruled.

4. With regard to the third contention, we are unable to hold that the Court of first instance exercised its judicial discretion improperly. The Court pointed out that the defendant was a permanent tenure-holder and had offered to the Pleader for the decree-holder to pay the money on the 23rd June 1909, some days before the application for execution was made. In view of this circumstance, the Court held that an order for extension might properly be made under Sub-section (3) and that view has been affirmed by the Judicial Commissioner on appeal. It is impossible for us to hold that there has been such a flagrant abase of judicial discretion as to justify the interference of this Court, as a Court of Appeal.

5. The result is that the order of the Court below is affirmed and this appeal dismissed.


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