Mahabir Singh and Others vs Deoki Rai

Das, J.—The petitioner challenges the validity or the legality of an order passed by the Subordinate Judge of Muzaffarpur granting an extension of time to the opposite party to comply with an order passed u/s 155 of the Bengal Tenancy Act and directing that the opposite party be restored to possession. It will be convenient to give certain dates.

It appears that on the 15th March 1915 the petitioner obtained a conditional decree for ejectment against the opposite party u/s 155 of the Bengal Tenancy Act. The decree provided that Rs. 20 should be paid as compensation to the plaintiff, and it directed the defendant to remove the disputed huts from the land in dispute within one month from the date of the decree. There was an appeal against this decree, which was dismissed on the 7th January 1916. It appears that on the 22nd January 1916 the opposite party deposited the money in Court but did not remove the huts as directed by the decree of the Munsif. On the 18th August 1916 the petitioner applied for execution of the decree and on the 29th August 1916 the opposite party applied for extension of time, to enable him to remove the huts, before the learned Munsif. On the 31st August 1916 the learned Munsif did grant an extension of time to enable the opposite party to remove the huts. There was an appeal from the order passed by the learned Munsif, which appeal succeeded. There was a second appeal to this Court which was dismissed on the 28th February 1917, but the High Court dismissing the second appeal expressly gave the opposite party power to apply for extension of time before the District Judge, but on the 2nd April 1917 the petitioner was put in possession of the property. On the 5th August 1918 the District Judge dealt with the application presented before him on the 24th March 1917 and by his order he extended the time to enable the opposite party to comply with the decree of the Munsif passed on the 15th March 1915 and further directed that the opposite party should be put in possession of the property. The petitioner before me complains against this order passed on the 5th August 1918 and urges that the learned District Judge had no jurisdiction to pass an order extending the time after he had been put in possession of the property by the order of the Court executing the decree.

In the case of Syam Mandal v. Sati Nath Banerjee 38 Ind. Cas. 493 : 24 C.L.J. 523 : 21 C.W.N. 776 : 44 C. 954 Mr. Justice Mookerjee held that it is competent to the Court to entertain an application for enlargement of time after the expiry of the period described in the decree and even after the decree-holder has applied for execution. The learned Vakil appearing on behalf of the petitioner concedes this proposition, but he argues that there is no power in a Court to enlarge the time after possession has been taken by a party in terms of the original decree. It appears that in the case just cited possession had, as a matter of fact, been taken by the decree-holder, for at page 533* the learned Judge says: "an order will also be made that the petitioner be forthwith restored to possession, and such order will be executed by the Court below as a decree of this Court." The true view seems to me to be what Mr. Justice Mookerjee states at page 533 that is to say: "A remedial provision of this character should be construed liberally so as not to restrict the remedy and fetter the discretion of the Court." It seems to me that taking possession of the property is a part of the execution proceeding and if it is held that a Court has power to entertain an application for enlargement of time even if the decree holder has applied for execution, it seems to me that the Court is equally competent to entertain an application for enlargement of time even if the decree-holder has obtained possession of the property. Of course the matter is one of discretion and the Court will exercise that discretion on all the materials before that Court. But, in my opinion, there is no question of jurisdiction involved in this matter. That being my view, I would refuse this application with costs, which I assess at two gold mohurs.