Biseswar Sahu vs Muhammad Zainul Rahman

This is as appeal against the decision of the Judicial Commissioner of Ranshi, dated the 1st of March 1920, upsetting that of the Sub-Divisional Officer of Chatra, dated the 24th September 1919.

The respondents obtained a decree for arrears of rent, with a conditional order of ejectment if the decretal amount was not paid up within a month. The judgment was passed on the 15th of January 1919 and the decree was drawn up on the 14th of February, stating, in terms of Section 178(2) of the Chota Nagpur Tenancy Act, that if the amount of the decree with interest and costs be paid into Court within 80 days from the date of the decree, the decree shall not be executed. Thirty days expired without any payment, and an order for ejectment wan issued in the 31st of March 1919, and possession of the land was delivered to the decree-holders on the 8th of April 1919.

On the 9th of May the judgment-debtor put in an application before the Sub Divisional Officer asking that the ejectment order be cancelled and the decretal amount be accepted. In that application he stated that he was not aware of the decree, and also prayed for an extension of time under Clause (3) of Section 178 of the Act. The question as to whether the judgment debtor appellant knew of the decree passed against him or not, was left undetermined by the Sub-Divisional Officer, because it was admitted by the judgment-debtor that the Sub-Divisional Officer had no authority to cancels his order u/s 178, Clause (2). He, however, granted the second prayer fur the extension of the period specified in the decree for payment of the decrial amount, and directed that the judgment-debtor was entitled to pay the amount up to the 27th of September 1919.

On appeal the Judicial Commissioner held that the decree haying been fully executed and possession delivered to the decree holders long before the application was made by the judgment-debtor for the extension of time, the Sub-Divisional Officer had no jurisdiction to extend the time under Clause (3) of Section 178. He accordingly reversed the order of the Sub-Divisional Officer, dated the 24th September 1919, and restored his previous order delivering the property to the decree-holders. Against this order the judgment-debtor has some to this Court in a miscellaneous appeal.

It is contended that the appeal to the Judicial Commissioner was incompetent, inasmush as the order of the Sub-Divisional Officer, dated the 24th of September, was not an order relating to the execution of the decree and consequently no appeal lay to the Judicial Commissioner. His contention was that if there was any appeal it lay to the Commissioner, inasmuch as the Sub Divisional Officer was exercising the powers of a Deputy Commissioner. Reliance for this contention has been placed upon the case of Surname Singh v. Sham Charan Chdar 15 Ind. Cas. 689 : 16 C.W.N. 1090 : 16 C.L.J. 520, In that case the extension of time under Clause (3) of Section 178 was allowed during the pendency of the execution proceedings. Here the execution proceedings had already terminated so far bask as the 8th of April'' 1919, when possession of the property was delivered to the decree holders. That authority has, therefore, no application to the present case. On the other hand, the orders under Clauses (2) and (3) of Section 178 relate to the execution of the decree, for within the time fixed under the former clause and within the time extended under the latter clause the decree cannot be executed. In other words, the effect of the orders under those clauses is to defer the execution of the decree, and it is only on default in payment of the decretal amount within the time limited by those clauses, that the right to execute the decree accrues. Therefore, in substance and in principle, the order u/s 178 relates to execution of the decree. Sash an order evidently comes u/s 215, Clause (3) of the Act, and an appeal from that order would lie to the Court to which the decree was appealable. u/s 224 the appeal from the judgment of the Sub-Divisional Officer, who was Deputy Commissioner, in a case u/s 139 lies to the Judicial Commissioner. The present suit for arrears of rent and for ejecting the defendant was brought under Clauses (3) and (4) of Section 139. Consequently the appeal from the order, such as was passed in the present case by the Sub-Divisional Officer relating to the execution of the decree, was properly preferred in the Court of the Judicial Commissioner and was legally disposed of by him. The contention of the learned Vakil on behalf of the judgment-debtor appellant before us must, therefore, fail.

It is next contended that the Sub-Divisional Officer was perfectly competent to extend the time as he did u/s 178, Clause (3), on the 24th of September 1919. This is an unsubstantial contention, inasmuch as the power vested in the Sub-Divisional Officer, u/s 178, Clauses (2) and (3), was exercisable only so long as the decree was not fully executed. After the completion of the execution proceedings and the delivery of property to the decree-holder, the decree cased to exist and, therefore, there was nothing before the Sub-Divisional Officer which he could deal with on the 24th of September 1919. This contention is also overruled.

The appeal is accordingly dismissed with costs.