P L D 1956 Dacca 280 (PLP)

AKBAR, J.‑This application has been made under sec tion 115 of the Civil P. C,, for revision of the order made by the Subordinate Judge of Rajshahi on the 11th June, 1952, The facts are as follows: On 31st July, 1951, the Munsif of Naogaon allowed the petitioner's application under section 174 (3) of the Bengal Tenancy Act in the following terms: "Miscellaneous Case will be allowed on contest with cost on petitioner's depositing the decretal amount together with Statutory compensation by 11th August, 1951. In default the Miscellaneous Case shall stand dismissed. Put up on that date for final orders". On 11th August, 1951, on the petition of the judgment- debtor for extension of time, the Court passed the following order: "Decretal amount and Statutory compensation not deposited. The petitioner by a petition prays for time for depositing the entire dues on the ground of illness. Perused the petition and heard Pleaders. The prayer is allowed. Put up on 29th August, 1951, for depositing the decretal amount together with Statutory compensation, in default the Miscellaneous Case shall stand dismissed. No further time will be allowed. Put up on the date fixed for final orders". Even on 29th August, 1951, the judgment‑debtor failed to deposit the amount and the Court ordered "that the Miscel laneous Case be dismissed on contest with costs". On 8th September, 1951, the judgment‑debtor deposited the decretal amount and on 10th September, 1951, he was asked to show cause why the deposit should not be rejected. His story was that he was under an impression that the time had been extended till 8th September, 1951. The learned Munsif, who was unable to accept his story that the date 8th September, 1951, mentioned in the Daily Cause List had misled him, rejected this deposit on 24th September, 1951. He then filed an appeal on 1st November, 1951, against the order, dated 29th August, 1951, dismissing the Miscellaneous Case and the order, dated 24th September, 1951, rejecting the deposit. The Subordinate Judge of Rajshahi, who heard the appeal, found that the appeal against the order, dated 29th August, 1951, was barred by limitation and that the order dated 24th September, 1951, was not appealable Relying on the case of Syed Muhammad Ashraf Ali v. Nabijan Bibi and another (43 C W N 417), he observed that "Even the lower Court had no jurisdiction to set aside or revise the order, dated 29th August, 1951, unless a petition for review under Order XLVII. Rule 1, Civil P. C. was filed". This Rules was issued against the order of the dismissal of the appeal. The learned Advocate for the petitioner has submitted that due to the mistake on the part of the lawyer of the Lower Court his client was late by one day in filing the appeal and hence this delay should have been condoned under section 5 of the Limitation Act. He has also argued that the learned Munsif had power to extend the time after 29th August, 1951. Now the question is: Could the Munsif allow the petitioner to deposit the amount after the order of dismissal had been effective? In my opinion, he had no jurisdiction to do so. A similar ‑question arose in the case of Surajmal v Bhubaneshwar (A I R 1940 Pat. 50), and Fazl Ali, J. made the following observations "Learned Counsel for the appellants cited a number of cases to support his contention that where a party is required to do something under a decree and a time limit is prescribed for doing it, the Court which passed the decree has no jurisdiction to extend the time limit. That is undoubtedly the general, rule but it is subject to the qualification that where the decree or order which fixes the time is not intended to be final and the Court still retains control over the proce eding, the Court may extend time under section 148, Civil P. C. . . . . A distinction is to be drawn between a case where the proceeding has terminated and one in which it has not terminated and the Court still retains control over it. Whether the Court still retains control over the proceeding or not must be determined upon the nature of the proceeding and the order passed therein. If that order is a final order, the Court is functus officio and it cannot enlarge time. In such cases if any relief is necessary, it can be granted only upon review by that Court or on appeal by a Court to which an appeal lies from that Court". His Lordship in the said order referred also to the well known judgment of Kekewich, J. in Collinson v. Jeffery ((1896) 1 Ch. 644) which is as follows "At all events, a blunder was made and the money was not paid in until too late. But it was ultimately paid in, and it is now in Court. The defendant has the security for which he bargained, and I think this is a case in which the Court ought to relieve the applicant from the consequences of the slip. Therefore, believing the slip to have been thoroughly honest, a view which is confirmed, not only by the affidavit of the plaintiff, Collinson, himself, but by the affidavit of his Solicitor, who says his client is a man of substance and could have paid when called upon. I think I ought to relieve the applicant if I can. Mr. Lemon says I cannot, because the action is dead. If that is the right view the matter is beyond my power. It appears to me, however, that this action is not dead‑it is comatose ; it is moribund ; but a final stroke is required to effect death. That final stroke has been delivered, and, therefore, in my opinion, the application is properly made and the order asked for may be granted". From the above observations, it is very clear that unless the action is dead the Court has jurisdiction to extend time. Now from the order, dated 31st July, 1951, it is very clear that the Court directed that the Miscellaneous Case shall stand dismissed if the decretal amount was not paid by 11th August, 1951. On 11th August, 1951, the date of payment was extended till 29th August, 1951. As the amount was not paid by the said date, the suit was dismissed. In the circumstances, there is no room for doubt that the proceeding terminated on that date and in the words of Kekewich, J. the action was dead. Thereafter the Munsif being functus officio had no jurisdiction to extend the time. Certainly, if the Munsif had power to extend the time, in that event I would not have hesitated to condone the delay of one day in filing the appeal. But as I have already held that the Munsif had no jurisdiction to extend the time, the condonation of the delay will not help the petitioner. The application therefore must be dismissed. I accordingly discharge this Rule but without any order as to costs. K. B. A. Rule discharged.