CHAND MEAH Vs. MOHUMMAD MUZAFFAR HOWLADAR

JUDGEMENT

(1.) This appeal is by the judgment-debtor and it arises with regard to the enforcement of a solenamah by which the parties agreed that an execution sale should be set aside on certain terms. The judgment-debtor's property had been sold and he preferred an application for setting aside the sale under Order XXI, Rule 90. In that proceeding a compromise was arrived at and it was agreed that if the judgment-debtor paid into Court the sum of Rs. 350 within the month of Magh of that year the sale would be set aside; and at the end of the joint application of the parties it was prayed that "an order be made fixing 30 Magh next for compromising the case in the way mentioned above." There was no 30 Magh in that year as the month of Magh terminated on the 29th. The appellant deposited the sum on the next day which would have been 30 Magh if that month had 30 days in it, but the month having expired on the day previous, that is, on the 29 day, it was the first of Falgoon. The short question is whether under the circumstances the sale should be set aside in terms of the compromise. As a matter of fact the Court of first instance extended the period by five days. But the question whether that Court could extend the period or not is a question which need not be decided in the present case because under the circumstances stated above it appears to us that the terms of the solenamah had been complied with by the appellant and he was entitled to have the sale set aside and the Munsif did set aside the sale. There was an appeal by the decree- holder who refused to accept the money deposited by the appellant and the Subordinate Judge reversed the decision of the Munsif on the ground that the appellant did not observe the terms of the solenamah. The learned Subordinate Judge was of opinion that although it was a very hard ease he was bound to give effect to the agreement of the parties as the Court had no power to extend the time without the consent of the decree-holder; and although he asked the Pleader who appeared for the decree-holder to consent to the extension of time that gentle- man did not do so evidently at the instance of his client. This appeal was decided ex parte. Then an application was made by the appellant who was respondent in the Court below for setting aside the ex parte decree and for re hearing the appeal. That application was rejected. This appeal is against the order rejecting the application for re-hearing the appeal. As we take the view that the decision, on the merits, of the Subordinate Judge is erroneous it is unnecessary for us to send the case back by allowing the appeal of the appellant against the order rejecting the application of the appellant for setting aside the ex parte, decree. We treat this as an application against the order setting aside the order of the Munsif.

(2.) We, therefore, set aside the order of the Subordinate Judge appealed against and as the only point is whether the decision of the Munsif was right that the money was deposited in time we consider it proper, as all the materials are before us, to decide the matter finally instead of sending the case again to the Subordinate Judge for decision. We are of opinion that the judgment of the Munsif setting aside the sale was correct and we direct that the judgment of the Munsif be restored.

(3.) Having regard to the circumstances we make no order as to costs.