JAIRAM NAGOJI Vs. KHAJA OBEDULLA KHAJA MAHAMOOD

JUDGEMENT

(1.) THE decree-holder respondent in this appeal obtained a decree on 11-9-1939 of ejectment under the provisions of Section 76, Berar Land Revenue Code, against the judgment-debtor. The decree, however, was not to be operative if the defendant deposited arrears of rent amounting to Rs. 362-14-6 on or before 15-2-1940. The defendant unsuccessfully appealed to the District Court, and that Court in its judgment dated 5-2-1940 extended the time for payment up to 5-4-1940. The judgment-debtor preferred a second appeal to this Court which was dismissed on 25.9-1942, and no mention was made of any extension of time within which the decree would be of no effect if the arrears of rent were paid. The judgment-debtor however deposited the arrears on 14-11-1942. The decree-holder considered that he was entitled to ignore this deposit, applied for the execution of his decree in March 1948 and obtained possession on 31st of that month. The judgment-debtor then applied under Section 47, Civil P.C., asking to be restored to possession on the ground that he was entitled to deposit the arrears of rent within two months of the date of the decree in the High Court. The executing Court, on the authority of Satwaji Balajirav v. Sakharlal Atmaramshet and Sashikanta v. Sarat Chandra A.I.R. 1921 Cal. 699, allowed the application and ordered the decree-bolder to put the judgment-debtor in possession of the fields. On appeal by the decree-holder the Additional District Judge reversed this decision. He pointed out that the Madras High Court in Ramaswami Kone v. Sundara Kone (08) 31 Mad. 28 had taken the opposite view and that the High Courts of Calcutta and Allahabad had at times expressed divergent opinions on this question. He further referred to a chain of decisions of this Court which favoured the Madras view and which had not been noticed in the Court below. The order was accordingly set aside and the judgment-debtor has preferred an appeal to this Court.

(2.) THE proposition is of course indisputable that in the case of an appeal being dismissed it is the decree of the appellate Court dismissing the appeal which is effective and not the decree which it confirms, but it does not necessarily follow that when an appeal is dismissed every incidence of the decree in the Court below is to enure, particularly for the benefit of the unsuccessful appellant. There is no case here of any statutory obligation to fix a time within which payment must be made as in Noor Ali v. Koni Meah (86) 13 Cal. 13 where, under the provisions of Section 52, Bengal Rent Act, ejectment for non-payment of rent would ensue unless the amount found due was paid into Court within 15 days from the date of the decree. Section 76, Berar Land Revenue Code, contains no such provision. Neither is there any obligation, as in the case of decrees concerning mortgages, to fix a date for payment, and it may also be noted that no fixed period of months was prescribed in the decree of the trial Court but a period of grace of a little over 5 months was allowed and a specific date fixed, and the extension of the appellate Court was granted obviously on the compassionate ground that the decision was given only 10 days before the date fixed for payment in the trial Court. It was not stated that the amount should be deposited within 2 months, but it was stated that it should be deposited on or before 5-4-1940.

(3.) PANCHU Sahu v. Muhammad Yakub A.I.R. 1927 Pat. 345 is a case on all fours with the one now before me, and when it explains the Bombay view to the contrary in Satwaji Balajirav v. Sakharlal Atmaramshet as placing too wide an interpretation on the Privy, Council decision in Bhup Indar Bahadur Singh v. Bijai Bahadur Singh (1900) 23 All. 152, it has my respectful concurrence. In Sarjabai v. Bhagwanji A.I.R. 1939 Nag. 140 where Pollock J. held that an appellate Court in a suit for preemption might fix a fresh date for payment, he allowed the appeal to the extent of fixing a subsequent date for payment, but this was on the ground that the lower appellate Court did not consider the question at all whether it had power to fix a fresh date for payment, and he did not consider that the lower appellate Court intended to pass a decree that was in effect a decree dismissing the plaintiff's suit. The matter is far otherwise in the case before me. The judgment of this Court dismissing the defendant's appeal is couched in language decidedly indicative of the ineptitude of the appeal and it is clear that the learned Judge was disinclined to exercise the power to fix a fresh date for payment.