JADABENDRA NATH MISHRA Vs. MANORAMA DEBYA

JUDGEMENT

(1.) This Rule was obtained against an order of the learned trial Judge, dismissing the petitioner's application under Sections 148 and 151 of the Code of Civil Procedure upon the view that, in the circumstances of this case, the Court had, as a matter of law, no power to extend the time, as prayed for in the said application.

(2.) Broadly speaking, the relevant facts are as follows: The original suit for partition was decreed ex parte. Thereafter, the present petitioner, who was a defendant in the said suit, made an application for setting aside the said ex parte decree under Order 9, Rule 13, of the Code of Civil Procedure. This gave rise to the Misc. case in question and, in the said Misc. case, the parties eventually came to terms and filed a petition of compromise, under which the petitioner was to pay a certain amount within a certain time to have the Misc. case allowed and the suit restored to file after the setting aside of the relative ex parte decree. There was also a default clause providing, inter alia, that, in case the above payment was not made within the specified time, the Misc. case would stand dismissed and the ex parte decree in question would stand affirmed. On account of his illness, the petitioner could not make the above deposit in time with the result that the Misc. case stood dismissed and, accordingly, the petitioner made his present application under Sections 148 and 151 of the Code of Civil Procedure.

(3.) The opposite party filed his objections to the same, both on the merits and on the technical ground that the previous order, fixing the time-limit for the deposit in question, was by consent and, accordingly, the said time could not "be extended without consent of parties. The Court below has accepted the opposite party's above contention on the point of law and appears to have rejected the petitioner's application upon the preliminary ground that the time, fixed for deposit of money, as aforesaid, by consent, could not be extended except by consent of parties, which, obviously, was not there in the instant case. The point now is whether, apart from consent, the Court can, in the instant case, extend the time for the deposit in question, provided it is satisfied on the merits that there was a case for such extension.