Patna High Court
Suraj Singh vs Rajnarain Lal And Anr. on 24 September, 1983
Equivalent citations: AIR 1984 PATNA 155, (1984) PAT LJR 285
JUDGMENT Ashwini Kumar Sinha, J.
1. Defendant No. 1 is the petitioner in this revision application. This application arises against the order dated 20-8-1976 passed in Title Appeal No. 124 of 1969 by the 4th Additional Subordinate Judge. Muzaffarpur, by which the Court has extended the period granted by it in the decree by which the plaintiff was directed to deposit Rs. 815/- within one month from the date of the judgment and by which it was directed that on deposit being made the defendants were to deliver possession of the suit property to the plaintiff and in case the defendants failed to do so the plaintiff would be entitled to get possession through court.
2. The plaintiff-opposite party first party filed Title Suit No. 265 of 1962 for a declaration that he was a bona fide purchaser for value of Rs. 965/- without notice of any previous purchase of the petitioner from opposite party-second party in respect of schedule I land measuring 3 bighas 9 kathas and 12 dhurs situated in village Muraul. The suit was also for a declaration that the sale deed propounded by the petitioner was fraudulent, collusive and antedated and for a further direction to the opposite party-second party to make over the original sale deed executed in favour of opposite party-first party and to deliver possession to him and for a further direction to him to deposit the balance of consideration money within the specified period granted by the Court. The suit was for a further declaration that the certified copy of the kobala in favour of opposite party-first party be declared to have the force of the original kobala and also for mesne profits from the date of execution of the kobala to the date of recovery of possession, The plaintiff had further prayed that if for any reason the decree for possession could not be passed then a decree for Rs. 405/- principal and Rs. 144/-as interest (Total Rs. 549/-) be passed by way of damages against the defendant. Thus it is desirable to state lust here in view of the relief claimed the suit was primarily a title suit and alternatively the relief for a money decree.
3. The aforesaid title suit was dismissed against the petitioner of the present revision application. Thereafter the plaintiff-opposite party first party preferred an appeal (Title Appeal No. 124 of 1969). This was ultimately allowed and the suit was decreed. By the decree the plaintiff was directed to deposit Rs. 815/- within a month from the date of the judgment and on deposit being made the defendants were directed to deliver possession of the suit land to the plaintiff and in case of failure on the part of the defendants the plaintiff was held to be entitled to get possession through the Court. The lower appellate court also declared that the certified copy of the sale deed (Ext. 7) was to have the force of the original kohala as prayed for by the plaintiff and that the plaintiff was also entitled to the mesne profits from the defendants which was to be determined in a separate proceeding and the judgment and decree of the trial court were set aside. The decree was prepared and signed on 7-8-1974. The plaintiff-opposite party first party failed to deposit Rs. 815/- within the time allowed by the appellate court. On 23-12-1974 the plaintiff-opposite party first party filed a petition before the appellate court with a prayer to pass the chalan for Rs. 815/- and the grounds stated in the petition was that the deposit of the aforesaid amount could not be made within the time allowed by the court because of unprecedented flood which had completely washed away the plaintiff's house and as such he was put to great hardship and could not come to Muzaffarpur to take necessary steps. According to the plaintiff-opposite party first party he managed to come to Muzaffarpur in November, 1974 and he learnt that he had to deposit the amount within a month from the date of judgment. On the above grounds the plaintiff-opposite party first party made a prayer to the Court for an order to pass the chalan so that the plaintiff could deposit the amount as directed by the Court.
4. Defendant No. 1, the petitioner in the instant case filed a rejoinder and contended that the petition was not maintainable and that the time of one month for the deposit of Rs. 815/- was not allowed under any of the provisions of the Code of Civil Procedure (hereinafter referred to as the Code) so the time could not be extended under Section 148 of the Code. The petitioner further stated that the Court had no power to extend the time granted by the decree under Section 151 of the Code and once the judgment was signed it could not be altered and the order was final. The petitioner also contradicted the grounds taken by the plaintiff-opposite party first party and stated that the plaintiff's house was not washed away on account of unprecedented flood and the grounds taken by the plaintiff were all untenable.
5. The lower appellate court by the impugned order allowed the prayer of the plaintiff-opposite first party and directed the office for passing the chalan enabling him to deposit Rs. 815/- as directed in the judgment within ten days from the date of that order. The Court further stated that in case of failure on the part of the plaintiff-opposite first party to comply with the order the application would stand dismissed.
6. It is against this order that defendant No. 1 has filed the present revision application. Learned counsel appearing for the petitioner has submitted that once the decree was signed the Court has become functus officio and it has no power, whatsoever, under Section 148 of the Code to extend the time allowed under the decree. Learned counsel for the petitioner has tried to persuade us to accept his submission to the effect that the suit was really a suit for specific performance of contract and the time granted by the Court in the decree was under Section 35 of the Specific Relief Act. The submission has to be taken note of merely to be rejected. As to what the suit was for, has already been stated above and in view of the relief claimed (which has already been mentioned in the earlier paragraph of this judgment) it by no stretch of imagination can be said that the suit was for specific performance of contract. Learned counsel relied upon several decisions in order to persuade us to accept the submission that the time granted under the decree was under Section 35 of the Specific Relief Act. Those cases need not be referred to for the simple reason that they are irrelevant for the purpose of the case, as the present suit was mot a suit for specific performance of contract. It will appear from the petition that it was a suit primarily for title and alternatively for a money decree. By the impugned order the court below has not touched the merit of the suit at all. It has only enlarged the time that it had already granted. It is well settled that when a party is required to do something under a judgment and decree and the time limit is prescribed for doing it the Court which passes the decree has no jurisdiction to extend the time limit but if the decree or the order fixing the time is not intended to be final, the court retains control over the proceeding and it has all the jurisdiction under Section 148 of the Code to enlarge the same. In the present case, in my opinion, the court, in the decree, granted time under Section 148 of the Code itself. It is desirable to quote here Section 148 of the Code which is as follows:--
"Enlargement of time--where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this code, the court may in its discretion from time to time enlarge such period, even though the period originally fixed or granted may have expired."
Thus the court having granted one month's time to the plaintiff for the deposit of the amount under the power vested in it under the code itself, it was within its jurisdiction to enlarge the same under Section 148 of the Code. More so from the decree fixing the time it is apparent that it was never intended to be final inasmuch as it did not say that on failure to make the deposit the suit would stand dismissed. Thus, in my opinion, the impugned order does not suffer from any jurisdictional error and it cannot be said that the court below has acted in exercise of its jurisdiction illegally or with material irregularity.
7. In the result, the application is dismissed but in the circumstances of the case there will be no order as to costs.
S.K. Jha, J.
8. I agree.