Bhagwat Saran Singh v. Mithila Saran Singh — 1952 DIGILAW 132 (PAT)

Judgment Narayan, J. 1. This application is directed against an order of the Munsif 1st Court, Patna, to the effect that a miscellaneous case filed by the judgment-debtors for setting aside an execution sale should be deemed to be pending. The case was a case instituted under the provisions of Rule 90 of Order 21, Civil P. C., and the judgment-debtors of the execution case were the applicants. The decree-holder and the auction-purchaser were impleaded as opposite parties nos. 1 and 2, respectively. The case proceeded to a trial, but on 21-7-1951 a petition of compromise was filed by the judgment-debtors and the auction-purchaser, the terms whereof were as follows: (1) That the execution sale dated 15-7-1950 will be set aside on the judgment-debtors paying Rs. 80.00 to the auction-purchaser Bhagwat Saran Singh by 26-7-51. (2) That the decree-holder having been paid the amount of the decree out of the sale proceeds the balance of the amount deposited by the auction-purchaser and lying in deposit will be withdrawn by the auction-purchaser. The prayer in this petition was that the auction sale dated 15-7-1950 "be set aside in terms of the petition of compromise on payment as stated above." The order passed by the learned Munsif on this petition was that the miscellaneous case be disposed of in terms thereof, On 27-7-19(sic) the applicants of the miscellaneous case under Order 21, Rule 90, Civil P. C., filed a petition that the delay in the payment be condoned and a chalan be issued for depositing the amount mentioned in the compromise petition. The learned Munsif ordered the chalan to be issued, and the money was deposited by the judgment-debtors before 31-7-1951. Thereafter, the auction-purchaser filed an objection with regard to the deposits made by the applicants, and his objection came to be heard on 18-8-51. The learned Munsif. after hearing the parties, came to the conclusion that because time was not of the essence of the contract, the delay in depositing the amount could not be regarded as material. After this order had been passed the judgment-debtors filed a petition praying that the compromise, that had been recorded be ignored and that the case be tried from the stage at which it had been left. After this order had been passed the judgment-debtors filed a petition praying that the compromise, that had been recorded be ignored and that the case be tried from the stage at which it had been left. This petition was disposed of on 28-8-1951, and the learned Munsif held that the miscellaneous case as well as the sale stood and that the parties were relegated to their old position. It is against this order that the auction-purchaser has moved this Court in Civil Revision . 2. The substance of the contention raised (sic) me by the auction-purchaser is that the (sic) the learned Munsif dated 21-7-1951 to (sic) effect that the miscellaneous case be dis-(sic) of in terms of the compromise petition (sic) final judgment within the meaning of (sic) Rule 3, Civil P. C. and that the learned Munsif had no jurisdiction to modify or alter this order save as provided by Sec.152 or on review, in other words, the auction-purchaser regards the order dated 21-7-51 as the final judgment in the miscellaneous case under Order 21, Rule 90, Civil P. C., and therefore contends that the subsequent order of the learned Munsif direct-ing that the parties be relegated to their old position is void and without jurisdiction. In (sic) opinion, the contention urged on behalf of (sic) auction-purchaser is not fit to succeed. No (sic) the jurisdiction of a Court in regard to (sic) case begins from the date when it is filed, and it terminates on the date on which the judgment is pronounced and signed, and the Court has no jurisdiction to make any alteration in its judgment after it has signed it. There are also cases which lay down that where a sale is directed to be set aside on the decretal amount being paid within a certain time, the Court has no jurisdiction to extend the time unless proper steps for a review are taken by the party aggrieved. As an instance, I may refer to a decision of the Calcutta High Court reported in -- Mohammad Asraf Ali V/s. Nabijan Bibi, AIR 1939 Cal 581 (A) and a Bench decision of this Court reported in -- Hansraj Sangechi V/s. Jogeshar Prasad, AIR 1925 Pat 691 (B). But the terms of the order disposing of the application for setting aside the sale in these two cases have to be carefully considered. But the terms of the order disposing of the application for setting aside the sale in these two cases have to be carefully considered. In the Calcutta, case the order ran as follows: "The application is allowed on contest and the sale is set aside, provided the petitioner deposits the decretal amount within ten days hence, failing which the application shall stand dismissed." There was a distinct clause to the effect that if the amount is not deposited within ten days, the application shall stand dismissed. There may be some justification for the view that (sic), Civil P. C., can have no application in (sic) of this nature. Similarly, in the Patna (sic) referred to above, the compromise was to the effect that on payment of the judgment debt within a prescribed period, the sale shall stand cancelled, but that upon failure to make such payment the sale shall stand confirmed. In this case also, time was held to be of the essence of the agreement, and the view taken by their Lordships was that the appellants could not claim to set aside the sale. On the other hand, there are numerous cases of the different High Courts which lay down that the application of Sec.148, Civil P. C., depends on the question whether the matter has been finally disposed of by the Court, or the Court is seized of the matter and has control over it. If the order passed is not to be regarded as final and the Court still retains its control over and is seized of the matter it has full power to make any just and necessary order therein including in appropriate cases, the extension of time. 3. No doubt the view expressed even in those cases is that if the effect of the order is that in the event of non-compliance, it operates automatically and without further intervention of the Court, Sec.148 can have no application for the obvious reason that the Court has become functus officio. This view has been very clearly expressed by their Lordships of the Allahabad High Court in -- Gaya Din V/s. Lalta Prasad, AIR 1936 All 477 (C). Their Lordships in this case followed a Full Bench decision of their own High Court reported in -- Sital Din V/s. Annant Ram, AIR 1933 All 262 (D). This view has been very clearly expressed by their Lordships of the Allahabad High Court in -- Gaya Din V/s. Lalta Prasad, AIR 1936 All 477 (C). Their Lordships in this case followed a Full Bench decision of their own High Court reported in -- Sital Din V/s. Annant Ram, AIR 1933 All 262 (D). The facts of the Full Bench case were that a district Judge had made an order of remand, and in that order had directed that within one month from the date of his order the plaintiff-appellant shall place on the record all the papers that may be necessary for carrying out certain measurements, and that in case this was not done the remand order shall not take effect, and the appeal shall stand dismissed automatically. What happened was that some papers were filed in the Court of first instance within the period allowed, but others were filed beyond that period. When an application was made to the lower appellate Court to accept the documents it held that the time could not be extended under Sec.148, Civil P. C. There was an appeal to the High Court of Allahabad against this order, and it was heard by a Single Judge of that Court who was of opinion that the order was not final and that the time could be extended. Their Lordships in Full Bench agreed with this order, and made the following observation which appears to be relevant and pertinent for our present consideration: "We agree with the view taken by the learned Single Judge of this Court. What the learned District Judge meant when he said the appeal shall stand dismissed automatically upon a report being made,........... was that he was passing a sort of stop order, and at that moment he was not inclined to grant any further time to the plaintiff. The word automatically and the expression upon a report being made are somewhat contradictory. What the learned District Judge meant when he said the appeal shall stand dismissed automatically upon a report being made,........... was that he was passing a sort of stop order, and at that moment he was not inclined to grant any further time to the plaintiff. The word automatically and the expression upon a report being made are somewhat contradictory. If the final order depended on receipt of a report from the Court of first instance, it cannot be said that the order of the learned District Judge became operative, by its own force, without any report being received from the lower Court." In -- Ramachandra Chettiar V/s. Kandasami Pillai, AIR 1950 Mad 1 (E) the Madras High Court refused to interfere in revision with the order of a subordinate Judge extending the time fixed by the preliminary decree in a suit for partition which had provided that the plaintiff could recover certain properties on payment of a sum of money with interest into Court by a certain date. In this case also there was no provision as to the effect of nonpayment. In - Bajranglal Jhunjhunwalla V/s. Sm. Solaki Marwarini, AIR 1950 Cal 564 (F) the facts were that a munsif had passed the following orders in a proceeding under Order 9, Rule 9, Civil P. C. "That the miscellaneous case be allowed on contest provisionally. The petitioners to pay Rs. 35/- to the opposite party No. 1 by 10th February 1950 upon which the suit will be restored to file. In default, the miscellaneous case shall stand dismissed." Their Lordships held that by this order the learned Munsif had not divested himself of the power given to him under Sec.148, Civil P. C., and that it was still open to him to alter the form of his provisional order, that is to say, the extension of time. Indeed, there was an observation in this judgment that "once the period has expired and the order of dismissal has operated, then, clearly it can be said that whatever may be provided in Sec.148, Civil P. C., after the suit has actually been dismissed the Court has no jurisdiction to alter the order of dismissal except by way of formal review." 4. In this particular case before me the period had no doubt expired but the compromise petition did not contain any clause as to the effect of the non-payment, and therefore the Court had still seisin of the case and jurisdiction over the entire matter. The principles deducible from the reported decisions appear to be that if the time fixed has expired and the effect of the order is that in the event of non-compliance it operates automatically and without further intervention of the Court, the Court has no seisin of the matter and has become functus officio. But if the time has expired and an account of absence of a provision in the petition of compromise or in the order as to the effect of the non-payment the order has not operated automatically, then the Court has seisin of the matter and can still deal with it. In order to divest the Court of this jurisdiction there should, therefore, be two conditions, the first being that the time has expired and the second being that the nature of the order is such as to make it operate automatically. So long as the order is not perfected, the Court can in the exercise of its inherent powers deal with the matter and rehear the application or the suit. The case of--Surajmal V/s. Bhubaneshwar, AIR 1940 Pat 50 (G) is a Bench decision of this Court and the view which I am taking is amply supported by this decision. There also the order passed by a Munsif did not state that in the case of failure on the part of the plaintiff to pay the deficit court-fee within a fortnight, the suit was to be dismissed automatically. Their Lordships held that the Munsif still retained control over the proceeding, and his Lordship Fazl Ali J. made the following observation: Learned counsel for the appellants cited a number of cases to support his contention that where a party is required to do something under a decree and a time limit is prescribed for doing it, the Court which passed the decree has no jurisdiction to extend the time limit. That is undoubtedly the general rule, but it is subject to the qualification that where the decree or order which fixes the time is not intended to be final and the Court still retains control over the proceeding, the Court may extend time under Sec.148, Civil P. C. ............A distinction is to be drawn between a case where the proceeding has terminated and one in which it has not terminated and the Court still retains control over it. Whether the Court still retains control over the proceeding or not must be determined upon the nature of the proceeding and the order passed therein. If that order is a final order, the Court is functus officio and it cannot enlarge time. In such cases if any relief is necessary, it can be granted only upon review by that Court or on appeal bv a Court to which an appeal lies from that Court." His Lordship referred to the well-known judgment of Kekewich J. in -- Collinson V/s. Jeffery, (1896) 1 Ch 644 (H). I should also like to quote the following passage from that well-known English decision: At all events, a blunder was made and the money was not paid in until too late. But it was ultimately paid in, and it is now in Court. The defendant has the security (sic) which he bargained, and I think this is a (sic) in which the Court ought to relieve (sic) applicant from the consequences of the (sic) Therefore, believing the slip to have been thoroughly honest, a view which is confirmed not only by the affidavit of the plaintiff Collinson, himself, but by the affidavit of him solicitor, who says his client is a man of substance and could have paid when called upon. I think I ought to relieve the applicant if I can. Mr. Lemon says I cannot, because the action is dead. If that is the right view the matter is beyond my power. It appears to me, however, that this action is not dead --it is comatose; it is moribund; but a final stroke is required to effect death. That final stroke has been delivered, and therefore, in my opinion, the application is properly made and the order asked for may be granted." 5. It appears to me, however, that this action is not dead --it is comatose; it is moribund; but a final stroke is required to effect death. That final stroke has been delivered, and therefore, in my opinion, the application is properly made and the order asked for may be granted." 5. The standard appears to be whether the matter has been finally disposed of by the Court or the Court is still seized, of the matter and has still got control over it. For the obvious reason that in the petition of compromise that had been filed by the auction-purchaser and the applicant there was no clause to the effect that in the event of the failure of the judgment-debtors to pay Rs. 80.00 by 26-7-1951 the sale will stand confirmed there cannot be the least doubt that the Court had still seisin of the case, and on the application that was filed by the judgment-debtors on 27-7-1951, that is, only the next following day after the expiry of the term, it could pass necessary order. As a matter of fact the chalan was issued and the money deposited. The order dated 21-7-51 disposing of the miscellaneous case in terms of the petition of compromise can in no case be deemed to be the final order passed in the case under Order 21, Rule 90, when there was no clause in the compromise petition to the effect that in the event of the failure of the judgment-debtors to pay the decretal dues by 26-7-1951, the sale will stand confirmed. 6. In the circumstances of the case I am not able to hold that the order of the learned Munsif to the effect that the parties will be deemed to be relegated to their old position is without jurisdiction. It Is certainly a case in which the learned Munsif could have exercised his jurisdiction in the manner in which he has exercised it and he has not acted illegally. According to the standard laid down by their Lordships of the Privy Council in -- Venkatagiri Ayyangar v Hindu Religious Endowments Board, Madras, AIR 1949 PC 156 (I). The order does not call for any interference on my part. 7. According to the standard laid down by their Lordships of the Privy Council in -- Venkatagiri Ayyangar v Hindu Religious Endowments Board, Madras, AIR 1949 PC 156 (I). The order does not call for any interference on my part. 7. Lastly, I think it necessary to point out that though certain minors were the applicants in the case under Order 21, Rule 90, Civil P. C., while passing the order dated 21-7-1951 the learned Munsif did not apply his mind to the question as to whether the compromise was beneficial to the minors. Execution proceedings are regarded as a continuation of the suit and a next friend or a guardian cannot after decree enter into a compromise or an adjustment of the decree without the sanction of the Court. In the result, therefore, I would dismiss this application with costs. Hearing fee one gold mohur.