MOHAN RAM Vs. SARDAR BUDH SINGH

JUDGEMENT

(1.) The judgment-debtors in a money suit are the petitioners. In execution of the money decree, the executing, court fixed instalments for payment of the decretal amount Its order on the 3rd July. 1964 fixed that Rs 200 shall be payable by the judgment-debtors by the 15th of every month, the first instalment being payable by the 15th of July 1964 and in default of any Single instalment, the whole decretal amount was to be realised at the instance of the decree-holders through execution. The first instalment monev was not paid by the judgment-debtors by the 15th July, 1964. but was tendered with an application on the 24th of July, 1964. stating therein that the judgment-debtors had no information from their lawyer or his clerk that the dale of first pay ment of instalment was the 151h July, 1964 They got the information only on the previous day, that is. the 23rd. of July. 1964. and came with the first instalment money to Court on the next day. The executing Court, by its order on that day rejected the prayer of the judgment-debtors as frivolous and directed the decree-holders to file written processes for sale proclamation Against this the present application is directed.

(2.) It was brought to my notice that in pursuance of the order passed by this Court at the time of admission of this application, when stay of further proceedings in the execution case was granted, the judgment-debtor petitioners have been paying the monthly instalments by the appointed dates all through till now, every month at the rate of Rs 200 in the Court below. It is true that the lack of information on the part of the judgment-debtors about the date of the first instalment as fixed by the Court on the 3rd July. 1964, was not, in strict sense, a valid ground in law to claim any relief. When the order was passed by the court on a date fixed for that pur- pose, it is to be presumed that the parties concerned were aware of it. If their lawyers were aware of that order, which they are supposed to have been, that will also be taken as information to and knowledge of their clients. If there has been any negligence on the part of the lawyer or his clerk to communicate the particular order to the client for the purpose of compliance, he will be responsible for such laches to his client but that cannot be ordinarily, a legitimate ground to claim a redress in court. At the same time the court cannot be oblivious of the prevailing conditions in our country particularly in regard to illiterate and rustic litigants, who entirelv depend upon their lawyers for seeking relief through court. The vigilance which is normally expected of a litigant cannot be expected from the illiterate and rustic people who live at distances from the Court and the lawyers. In such circumstances, when a petition was filed before the executing court within a week of the fixed date for pav-ment of the first instalment and it was stated therein that the information about the dale reached the Judgment-debtors only the previous day. the court should not have rejected it as frivolous unless it was satisfied that the information received by them on the previous day was false. There is nothing in the impugn ed order to indicate that the Court had any material to discountenance the fact alleged in that petition of the judgment debtors If the court had jurisdiction to extend time for payment of the first instalment then it may be said to be a case where that jurisdiction was exercised with material irregularity and interference in revision may be invoked.

(3.) Learned counsel appearing for the decree-holders opposite party urged that the court had no jurisdiction or power to accent the instalment money or to extend the date of the pavmenl of the first instalment after the expiry of the due date In support of this contention he relied upon a Full Bench decision of the Bombay High Court in Waman Vishwsnath Bapat v. Yeshwanl Tuknram reported in AIR 1949 Bom 97. There the question was in relation to the instalments fixed in a particular decree Their Lordships examined whether the condonation or extension sought for by the judgment-debtors in that case was by wav of relieving a penalty by a court of equity on equitable grounds or was in respect of condonation of the failure to fulfil the obligations under taken by the judgment debtor as a condition of concession granted to him under the decree. The facts of that case are completely distinguishable on the ground that it was in relation to the instalments fixed in a decree and the executing court had no power or jurisdution to go beyond that decree. In the instant case before me it was the executing court which in proceedings of execution of the money decree had fixed instalments and fixed the dates for payments thereof. In such circumstances I do not see that it can be successfully urged that the executing court had no power or jurisdiction to extend the date for payment of the first instalment. Section 148 of the Code of Civil Procedure empowers the court to enlarge a period which is fixed or granted by the Court for the doing of any act prescribed or allowed by the Code of Civil Procedure, even though the period originally fixed or granted may have expired. Apart from that, Section 151 of the Code of Civil Procedure can also be invoked in an appropriate case where the case of justice calls for an extension of time for a particular thing. I can usefully refer to the case of Mahanth Ram Das v. Ganga Das, AIR 1961 SC 882, where the powers of the Court in such a context were examined and held to be existing.