Mt. Ram Kumari vs Deonandan Singh

Kulwant Sahay, J.—This is an application in revision on behalf of the Defendant in the suit against an order passed by the District Judge of Darbhanga, dated the 22nd September 1924, whereby he extended the time for depositing a certain sum of money ordered to be deposited under the decree passed in appeal. The circumstances under which the order came to be passed are shortly as follows.

The Plaintiff brought a suit in the Court of the Subordinate Judge to recover possession of certain lands on a declaration of his title on the basis of a deed of sale executed by one Damodar Raut.

The Defendant was the widow of Damodar Raut and her defence was that the kobala set up by the Plaintiff was not executed by her husband and that there was no passing of consideration under it.

The learned Subordinate Judge held that the kobala had been executed by Domodar Raut but that the Plaintiff had failed to prove the passing of consideration, and he accordingly dismissed the suit. On appeal the learned Judge decreed the suit on condition of the Plaintiff depositing in Court for payment to the Defendant a sum of Rs. 400 within three months from the date of the judgment. The judgment was passed by the District Judge on the 27th March 1924 but the decree was prepared and signed by him on the 2nd April 1924. The Plaintiff deposited the amount required under the decree on the 30th June 1924, that is, three days beyond the three months directed by the decree. He filed an application subsequently saying that he was misled by the fact that the decree had been signed on the 2nd of April and that he was under the impression that the money was to be deposited within three months from the 2nd of April. The learned District Judge has accepted the deposit and has directed the Plaintiff to deposit interest for the three days from the 27th of June to the 30th of June. Against this order the Defendant comes in revision to this Court, and it is contended on her behalf that the learned Judge had no jurisdiction to extend the time upon the application made by the Plaintiff.

Now, the decree did not direct that the suit would stand dismissed on failure of the Plaintiff to deposit the amount within three months. The decree runs thus:

It is ordered that the appeal be and the same is hereby allowed, the decree of the Court below is set aside and the Plaintiff''s suit is decreed in this way that the title of the Plaintiff as purchaser on the strength of the kobala. Ex. 1, is declared and that the Plaintiff is declared to recover possession of the properties in suit subject to his paying the sum of Rs. 400 with interest running thereon from 29th June 1921, the date of the kobala, at the rate of one rupee per cent. per month within 3 months from to-day and it is also declared that Defendant as widow of Damodar holds a lien by way of charge on the properties gold until such time that she is paid off the above dues. The Plaintiff-Appellant will get half the costs throughout and the Defendant will bear her own costs.

The learned District Judge who passed the decree is the Judge who has extended the time by his order of the 22nd September 1924 and he is the best person to construe his own decree. He has construed that decree to mean that there was no order passed by him to the effect that the suit was to be dismissed in case the deposit was not made within three months from the date of the order. That he had jurisdiction to extend the time in any event on an application for review of his judgment is not denied. What is contended is that the time could not be extended upon the application of the Plaintiff without an application for review. That may be so, but if the learned Judge had jurisdiction to extend the time upon an application for review, there is no reason why his order should be disturbed because he made the order upon an application for extension and not upon an application for review. In Rameswar Mahton Vs. Lala Dwarka Prasad, , it was held by a Division Bench of this Court that although a Court has no inherent jurisdiction u/s 151, Civil Procedure Code, to do that which is prohibited by the Code, but where a suit was dismissed on a preliminary ground and the Plaintiff applied u/s 151 to the Court to set aside the decree under its inherent powers, and the Court granted the prayer, and an application in revision was made to the High Court to set aside the order, it was held that inasmuch as a prayer for review under Order 47, Rule 1, if made, could have been granted by the Court, the mere fact that the Plaintiff, instead of applying as he should have done, under Order 47, Rule 1, had applied u/s 151, was no ground for interference in revision. The principle laid down is applicable to the present case.

The application must, therefore, be dismissed with costs.