KSHETRA MOHAN GHOSE Vs. GOUR MOHAN KAPALI

JUDGEMENT

(1.) This appeal is directed against three orders of the learned Subordinate Judge of Jessore, the last of which is dated 15 June 1932. It appears that the present appellants applied to execute a solenama decree by which it was agreed that the appellant would be entitled to recover khas possession of the land in dispute in the suit in case the petitioner, the judgment- debtor, admitted that he could not pay in time and hence the Munsif who dealt with matter in the first instance disallowed the objection of the judgment-debtors. Against that order an appeal was taken to the Court of the Subordinate Judge of Jessore who made an order the material portion of which is as follows: If the payment of Rs. 30 be not made according to the above direction the appeal shall stand dismissed with costs.

(2.) The direction was that it was to be paid within seven days from the date of the order. The direction given is substantially as follows: So apart from the question of legality of the terms incorporated in the decree I think the most appropriate order would be to allow the appeal on payment of the balance of Rs. 30 within seven days from this date and to disallow the appeal on failure of payment.

(3.) This sum was not paid during the seven days of the date of the order of the lower appellate Court which was passed on 30 May 1932. On 6 June 1932 the present respondent (judgment-debtor) put in a petition for time to deposit the amount ordered by the decree, and on 15 June the Court allowed the appeal from the order of the Munsif and allowed the application of the judgment-debtor as the sum of Rs. 30 was deposited. Against this order the present appeal has been preferred and it is contended on behalf of the appellant that it was not open to the lower appellate Court to extend the time for the payment of Rs. 30 which was fixed by the decree of the Court. In support of this contention reference was made to several cases which lay down that Section 148, Civil P. C, does not entitle the Court to extend time fixed by a decree in a suit. Reference may be made to the decision in the case of Suranjan Singh V/s. Ram Bahal Lal (1913) 35 All 582, to a decision of this Court in the case of Bibi Sharofan V/s. Mahomed Habibuddin (1911) 10 IC 148, and to a decision of the Madras High Court in the case of Dharmaraja Ayyar V/s. K.G. Srinivas Mudaliar AIR 1916 Mad 694. The Patna High Court, however, takes a different view. But it seems that the attention of the Patna High Court was not drawn to the Allahabad decision. The decision of the Patna High Court was in the case of Abu Muhammad Mian V/s. Mukut Pertab Narain AIR 1916 Pat 268. Having regard to the preponderance of the judicial authority in favour of the contention of the appellants we think that the appeal should be allowed and the order of the Subordinate Judge allowing the appeal against the order of the Munsif should be set aside. The result is that the order of the Munsif dated 19 December 1931 is restored. No order is made as to costs as the respondent does not appear. M.C. Ghose, J.