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HIGH COURT OF ORISSA
G. K. Misra, J.
KANHU CHARAN BEHERA - Appellant
Versus
JAGABANDHU BEHERA - Respondent
Civil Revn. 80 Of 1966
Decided On : April 09, 1968
CIVIL PROCEDURE CODE - SECTION 148 - EXTENSION OF TIME - POWER OF COURT - DISTINCTION BETWEEN FINAL AND NON-FINAL ORDERS - EFFECT OF APPELLATE COURT'S REFUSAL TO EXTEND TIME - RES JUDICATA.
Fact of the Case:
Plaintiffs filed a suit for partition and repurchase of homestead against defendants. The trial court decreed the suit in respect of the Bari land and dismissed it in respect of the house. On appeal, the appellate court confirmed the plaintiffs' right to purchase Bari land and allowed the cross-objection filed by the plaintiffs for repurchase of the house. The plaintiffs failed to deposit the purchase money within the time granted by the appellate court. They filed a petition for extension of time before the trial court, which was rejected. The plaintiffs filed a civil revision against the order of the trial court.
Finding of the Court:
The appellate court had the power to extend time for deposit of the purchase money in respect of the house, as the decree was not final and the court still retained control over the proceeding. The trial court also had the power to extend time granted by the appellate court as time was not the essence of the decree and the period prescribed in the decree was not final. However, the trial court did not have the power to extend time after the appellate court refused the same, as the appellate court's order, though erroneous, was not without jurisdiction.
Issues: 1. Whether the appellate court had the power to extend time for deposit of the purchase money in respect of the house? 2. Whether the trial court had the power to extend time granted by the appellate court? 3. Whether the trial court had the power to extend time after the appellate court refused the same?
Ratio Decidendi: 1. The appellate court had the power to extend time for deposit of the purchase money in respect of the house, as the decree was not final and the court still retained control over the proceeding. 2. The trial court also had the power to extend time granted by the appellate court as time was not the essence of the decree and the period prescribed in the decree was not final. 3. However, the trial court did not have the power to extend time after the appellate court refused the same, as the appellate court's order, though erroneous, was not without jurisdiction.
Final Decision: The order of the learned Additional Munsif refusing to get a sale deed executed in respect of the Bari land is set aside and that refusing to extend time in respect of the house is confirmed. The Civil Revision is allowed in part. Parties to bear their own costs.
( 1 ) THE petitioners (plaintiffs) filed Title Suit No. 57/197 of 1960/1957 in the court of the Additional Munsif, Kendrapara, for partition and re-purchase of the homestead against the opposite parties (defendants ). Opp. party 5 had sold his undivided dwelling house and homestead to opp. parties 1 to 4, who are strangers to the family of the plaintiffs and opp. party 5. The trial court decreed the suit in respect of the Bari land and dismissed it in respect of the house. The decretal order dated 11-2-61 runs thus-The defendants 1 to 4 are directed to sell share of the bari land to the plaintiffs for rs. 92/- within two weeks of the plaintiffs depositing Rs. 92/- into Court for payment to the defendants 1 to 4. The plaintiffs to deposit the money within three weeks hence. On failure of the defendants 1 to 4 to execute the sale deed in the time limited the plaintiffs are entitled to apply to get a sale deed executed by the court in their favour. Plaintiffs deposited Rs. 92/- in court on, 25-2-61. Against the judgment of the trial court, opposite party 1 preferred Title Appeal No. 70/1961 in respect of the Bari land. The petitioners preferred cross-objection against the dismissal of the suit for purchase of the house. On 31-7-63 the Additional Subordinate Judge dismissed T. A. No. 70/61. Thus plaintiffs" right to purchase Bari land was confirmed. The cross-objection filed by the petitioners was allowed with the following direction--The judgment and decree of the learned Munsif are set aside and the plaintiffs suit is decreed in full with costs. He is permitted to repurchase the undivided share of defendant-5 from defendants 1 to 4. Defendant-1 and others be directed to sell the share of defendant-5 to plaintiffs for the amount mentioned in the sale deed. Plaintiffs are directed to deposit the said amount into the court of Munsif, kendrapara within two months hence for payment to defendants 1 to 4 and defendants 1 to 4 are further directed to sell the property within one month from the date of deposit and on failure the plaintiffs are entitled to apply for getting a sale deed executed by court in their favour. The petitioners did not deposit the amount within two months. On 5-12-63 they filed a petition in Misc. Case No. 53/63 before the appellate court for extension of time to deposit the purchase-money. On 2-1-65 the petition for extension of time was rejected. The petitioners filed Civil Revision No. 78 of 1965, which was not admitted. On 20-2-65 the petitioners filed a petition before the trial court for permission to deposit the purchase money of Rs. 1000/ -. On 16-9-65 the Addl. Munsif passed the chalan for Rs. 1000/- and directed the chalan to be produced by 28-9-65. The chalan was filed on 27-9-65 showing payment. On 20-1-66 the Addl. Munsif rejected the petition for final decree, as Rs. 1000/- had been deposited beyond the time granted by the appellate court. Against this order the civil revision has been filed.
( 2 ) THE learned Additional Munsif exercised his jurisdiction illegally in refusing to direct execution of a sale deed in respect of the Bari land for which the purchase-money of Rs. 92/- had been deposited in time on 25-2-61. The final decree should have been passed in respect of Bari land.
( 3 ) THE main question for consideration is whether the learned Additional Munsif was justified in refusing to extend time for deposit of the purchase-money in respect of the house. To answer it, the following questions require examination:
(i) Had the appellate court powers to extend time for deposit of the purchase-money in respect of the house? Was the order dated 2-1-65 passed by the appellate court refusing to extend time proper? (ii) Has the trial court power to extend time after expiry of the time, given by the appellate court in Title Appeal No. 70/61? (iii) Has the trial court power to extend time after refusal by the appellate court to extend time?
( 4 ) THE aforesaid questions necessitate examination of the pow
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