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Abdur Rahim Molla and ors. Vs. TamijaddIn Molla - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal580,145Ind.Cas.381
AppellantAbdur Rahim Molla and ors.
RespondentTamijaddIn Molla
Cases ReferredAbdul Saher Sahib v. Abdul Rahman Sahib
Excerpt:
- .....the effect of varying the decree.2. the present rule is directed against the order refusing to grant time in so far as that order is based on the finding that the court had no jurisdiction to grant time.3. it appears that the contract in question has been held to have been a valid and a binding contract, and that it is still subsisting, no provision having been made in the decree to the effect that in the event of the decree-holder failing to deposit the balance of the consideration money within the time allowed by the court the contract would be rescinded. in these circumstances, the decree in question may be regarded as being in the nature of a preliminary decree, and if it be so regarded, the decision of the madras high court in the case of abdul saher sahib v. abdul rahman sahib.....
Judgment:
ORDER

Patterson, J.

1. The petitioners in this case have obtained a decree for specific performance against the opposite party. By that decree it was in effect ordered that on the petitioners depositing a sum of Rs. 235 in Court within 15 days of the date of the decree the opposite party should execute and register a kobala in their favour in respect of the land in suit and that in the event of the opposite party failing to do so the petitioners would be entitled to have a kobala executed and registered through the Court. The petitioners having failed to deposit the entire amount within the time allowed by the Court applied to the Court for an extension of time to enable them to put in the balance, at the same time stating in explanation of the delay that the pleader's letter informing them of the result of the suit had reached them too late and that they had therefore not been able to procure the whole amount in time. The learned Munsif however rejected the application, holding that he had no jurisdiction to grant an extension of time inasmuch as the time had been fixed by the decree of the Court and any enlargement of time would therefore have the effect of varying the decree.

2. The present rule is directed against the order refusing to grant time in so far as that order is based on the finding that the Court had no jurisdiction to grant time.

3. It appears that the contract in question has been held to have been a valid and a binding contract, and that it is still subsisting, no provision having been made in the decree to the effect that in the event of the decree-holder failing to deposit the balance of the consideration money within the time allowed by the Court the contract would be rescinded. In these circumstances, the decree in question may be regarded as being in the nature of a preliminary decree, and if it be so regarded, the decision of the Madras High Court in the case of Abdul Saher Sahib v. Abdul Rahman Sahib AIR 1923 Mad 284 would appear to be applicable. That decision supports the view urged before me on behalf of the petitioners, namely, that the Court below had jurisdiction to grant time for the deposit of the balance of the consideration money in the event of that Court being satisfied after due inquiry that there had been some adequate reason for the petitioners' failure to deposit the amount within the time fixed. The learned advocate for the opposite party does not seriously contend that the Munsif had no jurisdiction to grant time, and he has not been able to refer me to any decision of this Court in which a different view of the law has been taken from that taken in the Madras decision referred to above.

4. This being the position, I think the proper course will be to make the Rule absolute in this sense: that the learned Munsif must be held to have jurisdiction to grant time in the exercise of his discretion. An order rejecting the petitioners' prayer for time is accordingly set aside and the Munsif is directed to consider the application afresh in the presence of both sides and to dispose of it on its merits, either by rejecting it or by granting time on suitable terms. The Rule is accordingly made absolute in the manner indicated above. The costs in this Court will abide the final result, the hearing fee being assessed at one gold mohur.


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