PARMANAND DAS Vs. KRIPASINDHU ROY

JUDGEMENT

(1.) The present rule was obtained by the petitioners, the plaintiffs, against the defendant No. 1, who was the judgment-debtor in a suit before the Subordinate Judge of Cuttack, to show cause why the order obtained by the defendant No. 1 in that suit from the Subordinate Judge, on the 1 June 1909, extending the period fixed in the decree for the execution of a kabuliyat by him in favour of the petitioners, the decree-holders in that suit, beyond the period stated in the decree, should not be set aside.

(2.) It appears that by the decree, the present opposite party, who was the defendant No. 1 in suit No. 404 of 1907 in the Court of the Subordinate Judge of Cuttack, was directed to execute a kabuliyat as sarbarakar in favour of the plaintiffs, decree-holders, within two months from the date of the decree. The opposite party, the judgment-debtor, appealed to this Court, and within the two months limited by the decree, he put in an application to this Court, on the 20 May 1909, praying for an order to stay, pending the hearing of the appeal, the order of the Subordinate Judge passed in the decree directing him to execute the kabuliyat within two months from the date of the decree, or that this Court should pass such other order as to it might seem proper. The only order passed by this Court on that application was that the application should be put up when the appeal was disposed of. That order was dated the 20th May 1909. The opposite party, the judgment-debtor, then seems to have gone back to the Court of the Subordinate Judge of Cuttack, and, on the 1 of June 1909, obtained the order in respect of which the present rule has been issued.

(3.) In support of the rule, it is contended that, after the appeal had been filed, the Subordinate Judge had no power, under the law, to modify his decree or to extend the period fixed in the decree for the execution of the kabuliyat by the judgment-debtor. It is not clear under what provision of the law the order was passed by the Subordinate Judge; but it is suggested that it might have been passed under Section 148 of the new Code of Civil Procedure. On behalf of the petitioners it has, however, been contended that Section 148 cannot be taken to give to any Court power to interfere with or modify its decree after there has been an appeal filed against the decree, and we think that this contention is sound. The only Court that could, after an appeal had been preferred, modify the terms of the decree or extend the time fixed in the decree for its execution, or suspend the order made in the decree would, in our opinion, be this Court as the Appellate Court. We think, therefore, that this rule must be made absolute, and the order passed by the Subordinate Judge on the 1 June 1909 must be set aside, on the ground that he had no jurisdiction under the law to pass it.