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2001 Supreme(Cal) 133
HIGH COURT OF CULCATTA
Bhaskar Bhattacharya, J.
Niva Das & Anr.
Vs.
Jogananda Das & Ors.
C.O. No. 3033 of 2000
Decided on : March 8, 2001
Ashok Chakraborty, Pinaki Ranjan Chakraborty for the petitioners;
A. Bagchi, R. Halder for the opposite parties.
The right to apply for extension of time for deposit of money under section 47 of the Code of Civil Procedure accrues on the date when the decree holder is entitled to pray for allotment of the property in lieu of the owelty money. The application must be filed within 3 years from that date.
Headnote:
CIVIL PROCEDURE CODE - SECTION 47 - EXTENSION OF TIME FOR DEPOSIT OF MONEY - LIMITATION - ARTICLE 137 OF THE LIMITATION ACT - APPLICABILITY - SUFFICIENT CAUSE - MEANING AND SCOPE.
Fact of the Case:
Judgment debtors in a partition suit filed an application under section 47 of the Code of Civil Procedure seeking extension of time for deposit of owelty money as per the final decree. The Executing Court rejected the application on the grounds of limitation and absence of sufficient cause.
Finding of the Court:
The High Court held that the application under section 47 was barred by limitation as it was filed more than 3 years from the date the right to apply accrued. The right to apply accrued on the date when the decree holder was entitled to pray for allotment of the property in lieu of the owelty money, which was the day after the expiry of the time fixed for deposit of the money. The court also held that the petitioners failed to prove sufficient cause for the delay in depositing the money.
Issues: 1. Whether the application under section 47 of the Code of Civil Procedure was barred by limitation? 2. Whether the petitioners had sufficient cause for the delay in depositing the owelty money?
Ratio Decidendi: 1. The limitation period for filing an application under section 47 of the Code of Civil Procedure is 3 years from the date when the right to apply accrues (Article 137 of the Limitation Act). The right to apply accrues when the decree holder is entitled to pray for allotment of the property in lieu of the owelty money. 2. Sufficient cause for the delay in depositing the money must be proved by the applicant. The court will consider the facts and circumstances of each case to determine whether sufficient cause exists.
Final Decision: The High Court dismissed the revision application, upholding the decision of the Executing Court.
Bhaskar Bhattacharya, J. : This revisional application is at the instance of judgment debtors in a proceeding for execution of a final decree for partition and is directed against Order No. 124 dated August 31, 2000 passed by the learned Civil Judge, Senior Division, Burdwan in Miscellaneous Case No. 80 of 1991 arising out of Title Execution Case No. 10 of 1981 thereby rejecting an application under section 47 of the Code of Civil Procedure.
2. A suit for partition filed by the opposite party No.1 was decreed in preliminary form thereby declaring his 8 annas share in the suit properties. In the final decree proceeding, the Commissioner for partition suggested that the defendants would pay a sum of Rs. 6,000/- to the opposite party No.1 as owelty money within six months from the date of acceptance of the report failing which the portion allotted to the defendants in Plot No. 7527 should form part of the allotment of the opposite party No.1 on his payment of the said amount. The said report was accepted by the court and the same formed part of the final decree dated August 21, 1981.
3. The opposite party No.1 put the aforesaid final decree into execution thereby giving rise to the Title Execution Case No. 10 of 1981.
4. The petitioners did not deposit the said amount of Rs. 6,000/- nor did they file any application for extension of the time within February 21, 1982 i.e. the stipulated time of six months.
5. Thereafter on May 26, 1983, the petitioner No.1 alone filed an application before the Executing Court thereby praying for extension of the time for deposit of the amount of Rs. 6,000/- as, in the mean time, the opposite party No.1 on April 21, 1982 prayed before the Executing Court for allotment of Plot No.7527 in his favour for non payment of the owelty money by the defendants.
6. Subsequently, on June 7, 1983 the petitioner No.1 filed another application thereby praying for permission to deposit Rs. 6,000/- after allowing her earlier application dated May 26, 1983. The court merely permitted the petitioner to deposit Rs. 6,000/- at her own risk and such amount was deposited on June 9, 1983. However, subsequently the application filed by the petitioner No.1 for extension of time and rejection of the prayer of the opposite party No.1 for allotment of Plot No. 7527 was rejected on some technical grounds.
7. Long thereafter, the petitioners came up with an application under section 47 of the Code of Civil Procedure thereby praying for (1) extension of time for deposit of owelty money mentioned in the final decree for partition (2) acceptance of the delayed deposit of Rs. 6,000/- and (3) rejection of the prayer of the opposite party No.1 for allotment of Plot No. 7527. Such application gave rise to Miscellaneous Case No. 80 of 1991.
8. The only reason assigned by the petitioners in the said application under section 47 of the Code for not complying with the direction of payment of owelty money was that "under some unspeakable difficulties and under financial hardship and being in distress on account of the death of the husband of the petitioner No.1 and father of petitioner Nos. 2 to 6 and son of petitioner No. 7" the petitioners could not deposit the amount within the time mentioned in the decree.
9. The learned Executing Court by Order No. 80 dated August 22, 1992 rejected the said application on the sole ground that the learned Executing Court could not go beyond the decree and extend the time fixed by the decree.
10. Being dissatisfied, the petitioners, in the past, moved a civil revisional application before this court being C.O. No. 3168 of 1992 which was disposed of on April 19, 1999 by setting aside the said order and directing the learned Executing Court to decide the said application in accordance with law. In passing such direction, this court relied upon a Division Bench decision of this court in the case of Biswanath Kundu vs. Sm. Subala Dasi, reported in AIR 1962 Cal. 272 and concluded that the question of extension
