SARAT CHANDRA PATRO Vs. NARASINGHA PATRO

JUDGEMENT

(1.) This is an appeal by the plaintiff-decree holder in Title Suit No. 8 of 1960. In Second Appeal No. 315 of 1963 arising out of the said suit it was found that the suit house was the self-acquired property of late Linga Patra, the husband of plaintiff No. 1, but it had been built on a portion of the joint family property belonging to Linga and defendants 1 and 2. On that finding this court ordered that the decree-holder would recover possession of the suit house along with the suit site on which it was constructed on paying compensation to the defendants for having constructed the said house on a portion of the joint family property. The suit was remanded to the trial court to appoint a commissioner to demarcate the site on which the house had been constructed and to assess the valuation of the said site. The trial court was directed that after the aforesaid demarcation and valuation of the suit site, it would give direction for the payment of compensation by the decree-holder to the defendants for constructing the house on the joint family property, and would pass necessary orders to give effect to the decision arrived at by the High Court in the said second appeal including the question of delivery of possession in favour of the plaintiff. The trial court assessed the valuation of the suit site at Rs. 2,200/- and directed the decree-holder by its decree to pay half of the said amount, i. e. Rs. 1,100/- to defendants 1 and 2 towards compensation and thereafter to recover exclusive possession of the suit house to himself. It also decreed that the decree-holder would remain in joint possession of the rest of the suit land along with defendants 1 and 2. Plaintiff No. 1 deposited Rs. 1100/in court on the aforesaid account. Defendants 1 and 2 preferred Title Appeal No. 24/66 against the aforesaid decision of the trial court. That appeal was allowed on 11-5-1968, the valuation of the suit site was increased to Rs. 3300/and it was held that the decree holder was liable to pay half of the same, i. e. Rs. 1650/-, to defendants 1 and 2 towards compensation within two months thereof. The operative portion of the judgment reads as follows: -

(2.) Admittedly, the decree-holder has started the Execution Proceeding No. 35/66 and in that proceeding the decree-holder had deposited Rs. 1100/- on 30-9-1966. After the decision in Title Appeal No. 24/66, the decree-holder could not deposit the balance compensation amount of Rs. 550/- within the period of two months as mentioned in the operative portion of the order of the appellate court. Thereafter the defendants filed M. J. C. No. 6/71 and contended that the above-mentioned execution proceeding was not maintainable as the entire amount of Rs. 1650/-had not been paid within two months as directed by the District Judge in T. A. No, 24/66. The Subordinate Judge in seisin of the execution proceeding dismissed the said M. J. C. holding that the time stipulated in the appellate court's order was meant only to facilitate payment by the decree-holder of the aforesaid compensation amount and not for any other purpose. The subordinate Judge further held that non-payment of the compensation amount or a part thereof within the time prescribed in the appellate court's order did not render the decree ineffective or not executable for all times to come.

(3.) The defendants filed Miscellaneous Appeal No. 32/72 in the court of the District Judge against the aforesaid decision of the Subordinate Judge in M. J. C. No. 6/71 and the District Judge allowed the said appeal by holding that the executing court could not ignore the prescribed time fixed for the payment of the compensation amount and it could not go behind the terms of the decree and could not make a new decree under the guise of interpreting the court's decree. As the balance compensation amount of Rs. 550/ had not been paid by the decree-holder within the stipulated time, the District Judge dismissed the execution proceeding holding that the decree-holder was not entitled to recover possession of the suit house and the site due to the non-payment of the aforesaid balance compensation amount in time. This appeal has been preferred against the said decision of the learned District Judge.