MT SITA KUMARI Vs. RAMNATH NONIA

JUDGEMENT

(1.) On 29 November 1945 the Munsif of Jamui passed a decree for specific per formance of a contract for the sale of land in favour of the appellants. The decree says: The plaintiffs will be entitled to recover possession of the suit lands on their depositing Rs. 8,00 in favour of defendant 2 within three months from the date of this order. The defendant appealed. On 1 July 1946 the appeal was dismissed and the Munsif's decree was confirmed. On 18 September 1946, the plaintiffs-deposited Rs. 80O and applied to the Court, for delivery of possession over the land. This has been refused on the ground that the time for the making of the deposit ran from the date of the Munsif's decree. Hence, this appeal.

(2.) The only question in this case is whether the effect of the appellate decree is to give a fresh starting point to the period within which the deposit could be made. There is a conflict of decisions on the point. A positive answer is indicated by Nanchand V/s. Vithu 19 Bom. 259; Satwaji Balajirav V/s. Sakharlal and Rupohand v. Shamshul Jehan 11 All. 846 and a negative one by Jaggarnath Pande V/s. Jokhu Tewari 18 All. 223, Ramaswami Kone V/s. Sundara Kone 31 Mad. 28, Bhola Nath v. Kanti Chundra 25 Cal. 311 and Basanta Kumar V/s. Sm. Radha Rani A.I.R. 1922 Cal. 329.

(3.) In my opinion the point is concluded so far as this Court is concerned by Gobind Prasad V/s. Jugdip Sahay A.I.R.1925 Pat. 369, in which in circumstances substantially similar to those in the present case, Bucknill J. (Ross J. agreeing) held that an appellate order of confirmation gave rise to a fresh period during which a deposit might be made. Their Lordships followed Satwaji Balajirav v. Sakharlal and refused to follow Ramaswami Kone V/s. Sundara Kone 31 Mad. 28. In Panchu Sahu V/s. Muhammad Yakuh A.I.R. 1927 Pat. 345, Mullick. A.C.J. (Wort J. agreeing) has spoken of this finding as an obiter dictum. The ground given, is that the decision proceeded on an application, of Section 14, Limitation Act. With the utmost respect, I would differ from this observation, and-would assert to the contrary that the decision in Gobind Prasad V/s. Jugdip Sahay A.I.R. 1925 Pat. 369, proceeded on the finding that the appellate decree gave rise to a fresh starting point. In that case there were two obstacles in the way of the plaintiff, firstly, that deposit was not made within two months from the original decree, and secondly, that it was not made within two months of the appellate decree. Section 14 was applied only for getting over the second obstacle, reliance being placed for this purpose on a deposit for the same purpose made by the decree-holder's son within two months of the appellate decree. Therefore, the decision in Gobind Prasad V/s. Jugdip Sahay A.I.R. 1925 Pat. 369 is not obiter and is binding on us. The case before the Acting C.J. and Ross J., was on its facta distinguishable from Gobind Prasad V/s. Jugdip Sahay A.I.R.1925 Pat. 369 and from the case before us. There the appeal was preferred by persons who had to make the deposit in question. A finding that the appellate decree necessarily implies a fresh starting point would mean that the party liable to pay may get an extension of time by filing a frivolous appeal. Their Lordships did not see any reason to encourage such appeals. Further, they pointed out that the view taken by the District Judge would mean that the plaintiff for no fault of his own would lose interest on the Bum directed to be deposited by the original decree. Neither of these considerations arises here.