Patna High Court
Chaudhry Rameshwar Misser vs Choudhry Sureshwar Misser on 4 January, 1917
Equivalent citations: 39IND. CAS.664, AIR 1917 PATNA 344
JUDGMENT Chapman, J.
1. In this case Mrtasiri properties were sold in execution of a decree oh the 22nd of July 1914 arid purchased by the decree-holder. On the 19th Of August 1914 the judgment-debtor applied under Order XXI, Rule 90, and under Section 47 of the Code of Civil Procedure to have the sale set aside. After several adjournments, all of which excepting the last were made on the petition of the judgment-debtor in order to enable him to adduce evidence, a petition of compromise was filed. The petition was filed on the 23rd of November 1914. It was to the effect that the two parties had agreed that the judgment-debtor would pay the decretal money in full to the decree-holder on the 23rd of January 1915; that upon such payment being made the sale would be set aside. On the 23rd of January 1915 the judgment-debtor made a further application for time, stating that he had arranged for the sale of certain property in order to realise the money and that all that remained to be done was that the document had to be stamped. The decree-holder objected to the grant of further time. The learned Subordinate Judge thereupon recorded an order to the effect that it was a matter of agreement between the parties. If the decretal amount was not paid on that date the sale would be confirmed and that the Court could not vary the contract. Thereafter the judgment-debtor put in a petition challenging the correctness of the amount. The decree-holder agreed that the judgment-debtor should pay what he considered to be the correct sum, and that the balance would be received later. This amount was not paid; thereafter on the same day the Subordinate Judge recorded an order confirming the sale. The judgment-debtor now appeals to this Court and argues that the learned Subordinate Judge was wrong in the view that he took. It is contended that the Court had discretion under Section 148 of the Code of Civil Procedure to grant time, and that time in the circumstances of the case should have been allowed. I am of opinion, however, that apart from consent of the parties the Court had no jurisdiction to grant time in this case. Under Order XXI, Rule 89, of the Code of Civil Procedure, a judgment-debtor may obtain reversal of a sale by deposit of money in Court, but the Limitation Act provides that such deposit must be made within thirty days of the sale. The Court has no jurisdiction except under the provisions of the Limitation Act to extend the time. The Court has no jurisdiction to set aside a sale by allowing the judgment-debtor to deposit the decretal money after the period of limitation, has passed, the result was that the Court in the present case could only give time with the consent of the parties. The parties had agreed that the decretal money must be paid by the 23rd of January 1915. It is, in my opinion, clear that the date was an essential part of the agreement and except by consent of the parties the period could not be extended.
2. It has been contended that the Court erred in confirming the sale on the 23rd of January 1915 and that the order of confirmation should have been passed on the 24th. It is not, however, suggested that the judgment-debtor would have been able to pay the amount on the 23rd even if he had been given the whole day. It is also stated in the petition of compromise that the case should be postponed until the 23rd of January 1915. It was, therefore, contemplated by the parties that the case would be disposed of on that date if the money was not paid. The result is that the appeal fails and it is dismissed with costs.
Roe, J.
3. I agree.