SARADA CHARAN BASAR Vs. JURO RAM MANDAL

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree for rent made under the provisions of Section 66 of the Bengal Tenancy Act. The order for ejectment could, therefore, not be carried into effect until after the expiry of the 15 days allowed for payment by the second subsection of the section which we have cited. The decree was made on the 24th May. The order was drawn up and signed on the 31st May. The arrears should, therefore, have been paid on or before the 15th June. As a matter of fact the amount was not so paid into Court, and on the 5th August the decree-holder applied for execution. Notice was issued upon the judgment-debtor, and on the 7th September he appeared and applied for extension of time, it being his case that he had no notice of the decree and that no notice of the application in execution was served upon him. The first Court found no reason to extend the time and accordingly rejected his application. Against that order the tenant judgment-debtor preferred an appeal to the District Judge of Khulna, and at the hearing of the appeal the learned Subordinate Judge extended the time by a period of one week from the date of his order. We are informed that the payment has been made in accordance with the terms of that order, against which the decree-holder now appeals.

(2.) His main contention is that inasmuch as before the 7th September, on which date the judgment-debtor made his application for extension, the period of 15 days had already expired it was no longer open to the Court to enlarge the time. In support of this contention he refers us first to the case of Sunkar Singh v. Huree Mohan Thakoor 22 W.R. 460 in which it was held under the corresponding provisions of Act X of 1859 and Act VIII of 1869 that no extension of the period of grace could be granted. But under the law as contained in those two enactments the Court had no power, or at least was not expressly given the power, to extend the statutory period. Under the present Act by virtue of Sub-section (3) of Section 66 the Court; is expressly authorized and empowered to enlarge the time. The appellant has next sought to distinguish the case of Bodh Narain v. Mahomed Moosa 26 C. 639 : 3 C.W.N. 628 : 13 Ind. Dec. (N.S.) 1010 in which it was held that under the provisions of Section 66 of the Bengal Tenancy Act and the provisions of Section 244, now Section 47 of the Code of Civil Procedure, it was open to the executing Court to extend the time, on the ground that there the application by the judgment-debtor was made before the expiration of the statutory period. That no doubt is so, but the reasoning which led the Judges to the conclusion at which they arrived would equally support an extension granted on an application made after the statutory period had expired. We also find that in Section 148, Civil Procedure Code, the principle that the Court may enlarge a period prescribed or allowed even though the period originally fixed may have expired has been expressly recognised, and we further find that even under the old Rent Act in the case of Rao Banee Ram v. Prannath Shaha Koyal 18 W.R. 412 : 10 B.L.R. App. 2 an extension of time was granted though the statutory period had expired before the application for enlargement was made. We can see no reason why the power of the Court to extend or enlarge the period allowed by law should be restricted in the manner suggested by the appellant. In so far as the exercise of the Appellate Court s discretion is concerned, we are of opinion that for the extension of time the learned Subordinate Judge has given sufficient reason and has exercised his discretion in a proper manner. Ha points out that the decree here in question was an ex parte decree and there is nothing to show that it was in fact brought to the notice of the judgment debtor until the proceedings in execution were taken. Further, as the learned Subordinate Judge has pointed out, in making the decree the first Court had omitted to specify, as he should have specified, the amount of the arrear and of the interest due.

(3.) For these reasons we dismiss this appeal with costs. We assess the hearing fee at two gold mohurs.