KISHANLAL Vs. IBRAHIM

JUDGEMENT

(1.) THIS is an appeal by Kishanlal and Pyarelal, by special leave, against a judgment and decree dated 24th November, 1948, of a learned single Judge of the High Court of the former State of Jodhpur.

(2.) IT is only necessary to state a few facts as the point for determination in this appeal is a narrow one. On 31st July, 1946 (corresponding to Sawan Sudi 3rd, Svt. 2003) the appellants Kishanlal and Pyarelal obtained a decree against one Alladin, who is now represented by Ibrahim, in the court of the learned Judicial Superintendent, Jodhpur City, for possession of a house by preemption. The trial court directed that the plaintiffs shall deposit a sum of Rs. 2500/- within two months from the date of the decree failing which their suit shall stand dismissed with costs. The plaintiff appellants actually deposited the decretal amount on 30th September, 1946, corresponding to Asoj Sudi 5th, Svt. 2003. The respondent objected in the course of the execution of the decree by the plaintiff appellants that the latter had deposited the money after the period of two months stipulated in the decree, that such time should be calculated on the basis of the Vikram Samvat and not the Gregorian calendar and that when so calculated the deposit had been made out of time and so the suit stood automatically dismissed. This objection was upheld by the learned Judicial Superintendent, Jodhpur City, by his order dated 19th November, 1947. The learned District Judge on appeal took the same view. On a further appeal to the former High Court of Jodhpur, a learned single Judge affirmed the judgment of the Courts below and held that the proper basis of calculation in Marwar was Vikram Samvat only and that that basis of calculation must be followed to the exclusion of the Gregorian calendar. IT was further urged before the learned Judge that although the pre-emption money come to be deposited on 30th September, 1946, the money had been actually brought in court and presented for deposit on 23rd September, 1946, and it was on account of the delay on the part of the office of the Court that the plaintiffs were prevented from actually depositing the money into the Treasury till 30th September, 1946. As the plaintiffs submitted that no opportunity had been given to them for proving the above mentioned facts, the learned Judge held that the matter merited a thorough enquiry and a definite finding and he, therefore, directed the learned Judicial Superintendent, Jodhpur City, to go into that question and give his finding thereon and remanded the case for further proceedings on the lines indicated above. From the above judgment, a Bench of this Court granted special leave for appeal which is now before us.