RAM PROSAD GHOSH v. HARI NARAYAN LAHA — 1978 DIGILAW 511 (CAL)

N. C. MUKHERJI, J. ( 1 ) THIS Rule arises out of an application under section 115 of the Code of Civil Procedure and is directed against Order No. 10 dated 27. 1. 78 passed by Sri B. Basu, Munsif, 2nd Court, Burdwan in Title Execution Case no. 37 of 1977 arising out of Title Suit no. 259 of 1975 allowing the application under Ss. 151 and 47 of the Code of Civil Procedure. ( 2 ) THE opposite party brought an ejectment suit against the petitioner which ended in a compromise. The suit was decreed in terms of a Solenama on 22. 8. 77. According to the terms of the Solenama the judgment-debtor/opposite party had to pay a sum of Rs. 520/- to the decree-holder/petitioner by 15th Kartick, 1384 B. S. On such payment being made, as per terms of compromise embodied in paragraph 3 of the Solenama, the decree-holder's claim would have been satisfied and the suit was liable to be dismissed. But in default of such payment the decree-holder was entitled to get a decree for eviction against the judgment-debtor and was also entitled to recover a sum of Rs. 520/- towards arrears of rent. In the application under S. 151 read with S. 47 the judgment-debtor made out a case that he actually handed over the sum of Rs. 520/- together with Rs. 90/- being the amount of rent for three months to the decree-holder at his shop on 15th Kartick, 1384 B. S. , but when receipt was demanded the decree-holder refused to grant any receipt. Consequently, the judgment-debtor deposited in Court the sum of Rs. 520/- on 14. 11. 77, i. e. , the day of re-opening of the Court after the Puja vacation. 15th Kartick, 1384 B. S. corresponds to 1st of November, 1977. It is the admitted position that 1st of November, 1977 fell during the Puja holidays. The judgment-debtor did not give notice of such payment to the decree-holder. The decree-holder ultimately put the decree into execution and Writ of delivery of possession was issued. The trouble occurred at the time of effecting the delivery of possession which resulted in filing the application. The judgment-debtor did not give notice of such payment to the decree-holder. The decree-holder ultimately put the decree into execution and Writ of delivery of possession was issued. The trouble occurred at the time of effecting the delivery of possession which resulted in filing the application. The decree-holder filed written objection and it was contended on behalf of the judgment-debtor that as the court was closed for Puja holidays on the stipulated date, i. e. 15th Kartick, 1384 B. S. the judgment-debtor deposited the amount in Court on the re-opening date, i. e. , 14. 11. 77 and as such the payment should be considered as valid. With regard to the point that the judgment-debtor did not serve any notice to the decree-holder with regard to the deposit, the decree-holder can at best claim costs. ( 3 ) IT was contended on behalf of the decree-holder that as per terms of the decree, the judgment-debtor was allowed to deposit within 15th Kartick 1384 B. S. corresponding to 1st of November, 1977 and that being so, on 14th November, when deposit was made, the Court lost its seisin and in that view of the matter of the Court had no jurisdiction to extend the time under S. 148 of the Code. The learned Musnif di not decided however the truth or otherwise of the story of the judgment-debtor that he made payment on 15th Kartick, 1384 B. S. to the decree-holder. Leaving aside that question, the learned Munsif found that as the judgment-debtor deposited the sum of Rs. 520/- on 14. 11. 77 the judgment-debtor's application under S. 151 read with S. 47 of the Code should be allowed to meet the ends of justice. ( 4 ) BEING aggrieved by the aforesaid order the decree-holder has come up to this Court. ( 5 ) MR. Gobinda Chandra Paul, learned Advocate appearing on behalf of the petitioner, contends that the decree specifically provided that the sum of Rs. 520/- would have to be deposited within 15th Kartick, 1384 B. S. corresponding to 1st of November, 1977. It is true that 1st November, 1977 fell during the Puja holidays. But, Mr. Paul submits that the decree was passed on 28th August, 1977 and the Court closed for Puja holidays on 12th October, 1977 that being so the judgment-debtor got enough time to deposit the sum of Rs. It is true that 1st November, 1977 fell during the Puja holidays. But, Mr. Paul submits that the decree was passed on 28th August, 1977 and the Court closed for Puja holidays on 12th October, 1977 that being so the judgment-debtor got enough time to deposit the sum of Rs. 520/-, but he chose not to deposit the amount earlier and deposited the same on 14th November, 1977, when the last date for making the deposit already expired. That being so, it must be said that the terms of the decree were not complied with and the judgment-debtor cannot have any relief by a way of an application under S. 151 read with S. 47 of the Code. Mr. Paul, in this connection, submits that if a specific time is mentioned in the decree for doing certain act and where it is further provided that in default the decree would be executed, the Court passing such a decree has no jurisdiction to xtend that time mentioned in the decree. ( 6 ) IN support of his contention Mr. Paul first refers to a decision reported in 37 Calwn 878 (Kshetra Mohan Ghose v. Gour Mohan kapali ). In this case it has been held that where certain time is fixed by a decree of the Court for taking some steps and it directs that on failure of doing so within the time limited, the case should stand dismissed, the Court has no jurisdiction to extend the time limited by the decree. ( 7 ) MR. Paul next refers to the decision reported in 66 Calwn 645 (Bhutnath Das v. Sahodeb Chandra Panja ). In this case it was held that where the Court has made an order for specific performance of a contract on a certain sum of money being put in within a specified time and has further ordered that if the said sum be not deposited within that date, the suit would stand dismissed, it has no jurisdiction thereafter the extend the time. If the Court has lost seisin of the case altogether, there is no scope for the application under S. 151 of the Code of Civil Procedure. It is only if the Court has retained jurisdiction in the litigation, that the question of making any order in inherent jurisdiction arises. If the Court has lost seisin of the case altogether, there is no scope for the application under S. 151 of the Code of Civil Procedure. It is only if the Court has retained jurisdiction in the litigation, that the question of making any order in inherent jurisdiction arises. If jurisdiction has already ceased to exist, the scope of making order in the inherent jurisdiction of the Court totally disappears. ( 8 ) THE facts of the present case are somewhat different. In the present case the last date for making the deposit was 1st November, 1977. Admittedly, on the said date the Court was closed as the date fell within Puja holidays. The Court admittedly reopened on 14th November, 1977 and on that date the deposit was made. The question arises whether such deposit is in terms of the decree or whether the Court was justified in accepting such deposit in the circumstances of the case. ( 9 ) MR. Nirmal Chandra Chowdhury, learned Advocate appearing on behalf of the opposite party submits that in the circumstances of the present case, the Court was perfectly justified in accepting the deposit which was made on the reopening date, i. e. , 14th November, 1977, as admittedly the petitioner could not deposit on 1st November, 1977 which was during the Puja holidays. ( 10 ) IN support of his contention, Mr. Chowdhury refers to a decision reported in 1972 (1) SCA 278: AIR 1972 SC 739 (Agandi C. F. v. Hirannayya Y. S. ). In this case by a compromise decree passed on 24th June, 1959 it was provided that the plaintiff would pay a certain sum of money as consideration for the giving up by the defendant of his right in a certain property. The money was to be deposited in Court and the period of time within which the payment was to be made was fixed as 1st January, 1960. It was also stipulated that time was the essence of the contract and that on failure of the plaintiff to deposit the money by the time fixed, the suit would be automatically dismissed. The plaintiff applied for a challan for depositing the money on 23rd December, 1959 and a challan was issued to him on 24th December, 1959. The Court remained closed from December 25, 1959 to 1st January 1960. The plaintiff deposited the money on 2nd January 1960. The plaintiff applied for a challan for depositing the money on 23rd December, 1959 and a challan was issued to him on 24th December, 1959. The Court remained closed from December 25, 1959 to 1st January 1960. The plaintiff deposited the money on 2nd January 1960. The plaintiff applied for execution of the decree and the executing court allowed the execution to proceed. It was held that the plaintiff had made the deposit insubstantial compliance with the decree and the execution. A court executing a decree cannot modify or vary the terms of a decree; but it has the right to construe a decree in the light of the applicable provision of law. In this case, on a construction of the decree in the light of the applicable provisions of law, the executing court found that the deposit made by the plaintiff on 2nd January 1960 was according to law, a deposit in compliance with the terms of the decree and in doing so it was not varying the terms of the decree but executing the decree as it stood after considering the effect of the deposit in the light of the relevant law. ( 11 ) MR. Paul wants to distinguish the facts of this case on the ground that in this case the plaintiff applied for a challan for depositing on 23rd December, 1959 and the challan was issued to him on 24th December, 1959. I do not think that makes any difference. The fact remains that the deposit was made after the expiry of the period mentioned in the decree. ( 12 ) THE next case relied on by Mr. Chowdhury is reported in ILR 35 Bom. 35 (Wana Mard Ravji v. Natu Walad Murha ). In this case the decree provided as follows:"the plaintiff should pay, by the 10th day of April 1909, to the defendant Rs. 100/ -. If the moneys are not paid by the plaintiff as agreed upon, the property is dispute will remain with the defendants by right of ownership and the plaintiff will have no right of ownership over the same. "the plaintiff chose to pay the money into Court and finding it closed on the 10th, she paid the money on the 14th April 1909, the day on which the Court re-opened. "the plaintiff chose to pay the money into Court and finding it closed on the 10th, she paid the money on the 14th April 1909, the day on which the Court re-opened. A question having arisen whether the payment so made was within the terms of the decree, it was held that the payment was properly made, for O. XXI r. 1 of the Code of Civil Procedure, 1908, intended to enact and did enact that payment into Court was a valid compliance with the decree even though the decree directed payment to the decree-holder. ( 13 ) MR. Chowdhury next refers to a decision reported in AIR 1923 Nag. 246 (Dhanu Singh v. Keshoprasad ). In this case the appellant sued the respondents for joint possession of a plot of land acquired by the defendants. On the 29th November, 1920 a decree of joint possession was passed in plaintiff's favour subject to his paying one hundred rupee as contribution within six months from the date of the decree. The period of six months expired in the vacation when the Courts were closed, and the appellant deposited his money in Court on the day the Court reopened. It was held that in view of S. 10 General Clauses Act, the payment was in time. ( 14 ) IN the present case the last date expired within the holidays and the deposit was made on the re-opening day. ( 15 ) WITH regard to the point that the judgment-debtor failed to serve a notice on the decree-holder and in such circumstances the decree-holder is only entitled to costs, Mr. Chowdhury refers to a decision reported in 35 Calwn 544 (The Rangpur Rayot Bank Ltd. v. Heabuddin ). It was held in this case that where a notice of payment is not given to the decree holder, the decree holder is entitled to get interest on the decretal debt, if any, has been allowed by the decree and the costs of any execution that he may have taken bona fide without knowing that the decretal debt has been paid into Court. ( 16 ) IN the present case, as it appears from the judgment, the judgment debtor has been directed to pay costs of execution. ( 16 ) IN the present case, as it appears from the judgment, the judgment debtor has been directed to pay costs of execution. ( 17 ) CONSIDERING the facts and circumstances of the case and after hearing the learned Advocates for the parties and considering the principles of law enunciated in the cases referred to above, I am of opinion that learned Munsif was perfectly justified in allowing the judgment-debtor's application under S. 151 read with S. 47 of the Code and I find nothing to interfere. ( 18 ) IN the result, the application fails and the Rule is discharged. There will, however, be no order as to costs in this Rule. Rule discharged.