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2008 DIGILAW 512 (CAL)

Pulin Bihari Jana v. Ashok Kumar Maity

2008-05-09

TAPAS KUMAR GIRI

body2008
Judgment : TAPAS KUMAR GIRI, J. (1). THIS Rule was obtained by the plaintiff /petitioner and it is directed against an order dated 28. 8. 2006 passed by Learned Civil Judge (Junior Division), Haldia, Dist. Purba Midnapur dismissing the application under Section 148 of the Code of Civil procedure for extending the time to make the deposit in terms of the ex parte order and decree dated 22. 6. 2006 and 28. 6. 2006 for pre-emption of the land under certain circumstances. (2). THE fact of the present application may be stated as follows;-The petitioner/plaintiff being a co-sharer filed a suit being T. S. No. 256 of 1998 against the defendants/opposite parties under Section 22 of the Hindu succession Act, 1956 for a decree of pre-emption on ka schedule property in connection with the sale deed dated 20. 8. 95 executed by Nalini Jana (defendant no. 4) in favour of defendant No. 1 to 3 before the Learned Civil Judge (Junior division) Haldia. (3). LEARNED Civil Judge (Junior Division) passed the ex parte order and decreed on 22.6.2006 and 28. 6. 2006 as the defendants did not contest the suit and Learned Civil judge (Junior Division) passed the decree for pre-emption of ka schedule property in terms of Section 22 of the Hindu Succession Act, 1956 after depositing a sum of rs. 7,000/- in Court in favour of the defendant No. 1 to 3 within a month of the date of passing of the order i.e., 22.6.2006. (4). THE petitioner could not make the deposit within the time. It is alleged in the application dated 28. 8. 2006 that the petitioner was under medical treatment from 20.7.2006 to 26. 8. 2006 due to his illness. The petitioner filed the application dated 28. 8. 2006 for extending the time to make the deposit. Learned Civil Judge (Junior division) after hearing as ex parte rejected the said application. Being aggrieved by the above order, the petitioner moved this Court and obtained the present Rule. (5). MR. Bose, Learned Advocate appearing on behalf of the petitioner submitted that the Learned Civil Judge (Junior Division) had failed to exercise jurisdiction in holding that no extension of time could be made as this Court became functus officio and the power under Section 151 or Section 148 of the C.P.C. is seized as those provisions are applicable in pending cases and suit. (6). MR. (6). MR. Bose, Learned Advocate contended that the Court has the power to extend time under Section 148 of the Code of Civil Procedure even after the time fixed by decree or order has expired. Learned Advocate cited a case law reported in AIR 1971 Calcutta 243 (Smt. Lakhmi Bala Chanak vs.-Brojendra Nath Pain and Ors.)No one appeared on behalf of the opposite parties and the affidavit of service of notice was filed on behalf of the petitioner. (7). AS per order dated 22.6.2006 passed by Learned Civil Judge (Junior Division), the money was not deposited within the fixed time and the petitioner was going to lose a valuable right of enforcement of the order and as such the petitioner is guilty for non-depositing money as per direction of the Court in time. In the application, the petitioner stated that due to illness from 20. 7. 2006 to 26. 8. 2006 he was unable to deposit the money in due time. If it is so, there were good reasons for the petitioner for not making the deposit in time. (8). THE only point is for consideration whether the Court has power to extend the time under Section 148 of the Code of Civil Procedure after the time fixed by the court. (9). IN the above decision Smt. Lakshmi Bala Chanak (supra), it is observed by this court that the Court has power to extend time under Section 148 of the Code of Civil procedure even after the time fixed by the order of the Court. (10). IN the result, I make the Rule absolute, set aside the impugned order dated 28. 8. 2006 of the Learned Civil Judge (Junior Division), Haldia and direct the petitioners application dated 28. 8. 2006 be considered afresh and be dealt with and disposed of by the Learned Civil Judge (Junior Division), Haldia in accordance with law and in the light of the observations made herein before as early as possible. C. O. No. 4263 of 2006 is disposed of.