RAM PROSAD GHOSH Vs. HARI NARAYAN LAHA

JUDGEMENT

(1.) This Rule arises out of an application under section 115 of the Code of Civil Procedure and is directed against Order No.10 dated 27.1.78 passed by Sri B. Basu, Munsif, 2nd Court, Burdwan in Title Execution Case no.37 of 1977 arising out of Title Suit no.259 of 1975 allowing the application under Ss. 151 and 47 of the Code of Civil Procedure.

(2.) The opposite party brought an ejectment suit against the petitioner which ended in a compromise. The suit was decreed in terms of a Solenama on 22.8.77. According to the terms of the Solenama the judgment-debtor/opposite party had to pay a sum of Rs.520/- to the decree-holder/petitioner by 15th Kartick, 1384 B.S. On such payment being made, as per terms of compromise embodied in paragraph 3 of the Solenama, the decree-holder's claim would have been satisfied and the suit was liable to be dismissed. But in default of such payment the decree-holder was entitled to get a decree for eviction against the judgment-debtor and was also entitled to recover a sum of Rs.520/- towards arrears of rent. In the application under S. 151 read with S. 47 the judgment-debtor made out a case that he actually handed over the sum of Rs.520/- together with Rs.90/- being the amount of rent for three months to the decree-holder at his shop on 15th Kartick, 1384 B.S., but when receipt was demanded the decree-holder refused to grant any receipt. Consequently, the judgment-debtor deposited in Court the sum of Rs.520/- on 14.11.77, i.e., the day of re-opening of the Court after the Puja vacation. 15th Kartick, 1384 B.S. corresponds to 1st of November, 1977. It is the admitted position that 1st of November, 1977 fell during the Puja holidays. The judgment-debtor did not give notice of such payment to the decree-holder. The decree-holder ultimately put the decree into execution and Writ of delivery of possession was issued. The trouble occurred at the time of effecting the delivery of possession which resulted in filing the application. The decree-holder filed written objection and it was contended on behalf of the judgment-debtor that as the court was closed for Puja holidays on the stipulated date, i.e. 15th Kartick, 1384 B.S. the judgment-debtor deposited the amount in Court on the re-opening date, i.e., 14.11.77 and as such the payment should be considered as valid. With regard to the point that the judgment-debtor did not serve any notice to the decree-holder with regard to the deposit, the decree-holder can at best claim costs.

(3.) It was contended on behalf of the decree-holder that as per terms of the decree, the judgment-debtor was allowed to deposit within 15th Kartick 1384 B.S. corresponding to 1st of November, 1977 and that being so, on 14th November, when deposit was made, the Court lost its seisin and in that view of the matter of the Court had no jurisdiction to extend the time under S. 148 of the Code. The learned Musnif di not decided however the truth or otherwise of the story of the judgment-debtor that he made payment on 15th Kartick, 1384 B.S. to the decree-holder. Leaving aside that question, the learned Munsif found that as the judgment-debtor deposited the sum of Rs.520/- on 14.11.77 the judgment-debtor's application under S. 151 read with S. 47 of the Code should be allowed to meet the ends of justice.