Hansraj Sangechi and Others vs Jogeshar Prasad and Another

Adami, J.—On the 28th August 1924, while an appeal was pending before the District Judge of Monghyr, the parties came to terms, and it was agreed that, if the present appellant, the judgment-debtor, deposited in Court in favour of the decree-holder, the present respondent, the full amount of the decree including the costs of the appeal within 15 days from that date, that is to say, by the 13th September 1923 the appeal would be allowed and the sale held in the connected execution case would be set aside. If the money was not deposited within the time allowed, then the appeal would be dismissed and the sale would stand confirmed.

Accounts had to be made up and were ready on the 4th September. On the 13th September the date on which the sum should have been deposited by the judgment-debtor, the latter filed a petition asking for a short extension of time for the deposit of the amount. The order passed was that the petition should be put up on the 15th September, which was the date which had been fixed by the learned District Judge for dealing with the case. No deposit was made until the 19th September, when a petition was filed on behalf of the judgment-debtor paying that the sum of Rs. 823-1-9, which was brought to Court that day, should be ordered to be deposited with the nazir. The District Judge passed the order that the appellant might deposit the amount and produce a chalan by the 23rd September. On the 23rd September an order was passed that the case should be put up on the 25th. On this latter date an order was recorded that the amount had been deposited on the 22nd as shown by a chalan. On the 26th the learned District Judge heard the Pleaders on both sides and held that, as the judgment-debtors had failed to deposit the money within the time ordered by the Court, the appeal must be dismissed with costs, and the sale must stand confirmed as had been ordered. It is against this order that the present appeal has been laid before this Court.

It is contended that the learned District Judge by his order of the 19th September and also by his order of the 13th September, allowed an extension of the time and that he had power so to order an extension, and, therefore, the depositing of the decretal amount on the 22nd September, fulfilled all the requirements of the agreement and the sale should have been set aside. In the order-sheet there is no order for extension of time; there are orders that an inquiry should be made whether the amount had been deposited or not, and when the appellant brought the money into Court and asked leave to deposit it, the learned District Judge allowed the deposit, but he did not express that by that deposit the terms of the agreement would be held to have been fulfilled. The question is whether the learned District Judge would in any case have jurisdiction to allow an extension of time having in view the terms of the agreement reached between the parties, and whether time was of the essence of the contract. Several cases have been put before us in which it has been held that, where there has been a consent between the parties the Court has power to grant relief against forfeiture and to extend the time for this purpose. But the present case is not a case of relief against forfeiture. In the case of Kandarpa Nag v. Banwari Lal Nag 60 Ind. Cas. 864 : 33 C.L.J. 244, Mookerjee, Acting C.J., laid down, after considering, the case-law on the subject, the principle which governs cases like the present one. From the cases he examined he laid down the principle that time is of the essence of the agreement, when, in the course of proceedings by the judgment-debtor to set aside an execution sale, a compromise is made among the decree-holder, judgment-debtor and execution-purchaser that on payment of the judgment-debt within a prescribed period, the sale shall Stand cancelled, while upon failure to make such payment the sale shall stand confirmed. He said, "in such" cases, as the parties intended in the first conception of the agreement to make time the essence of the contract, the Court would not be competent to extend the time, except by consent of all the parties concerned." That principle must be applied in the present case, and I am of opinion that the District Judge had not the power to extend the time which had been settled and agreed upon by the petitioners. As I have said before, the cases relied on by the learned Vakil for the appellants are cases where the question was one of relief against forfeiture, and in the present case that question does not arise. I thus find that the learned District Judge was correct in finding that the appellants had not observed the terms of their agreement and, therefore, could not claim to set aside the sale.

Therefore, I would dismiss the appeal with costs.

Kulwant Sahay, J.

I agree.