Sheikh Hamidur Rahman vs Shahanand Das and Others

Das, J.—This application is directed against the order of the learned Subordinate Judge of Purnea, dated the 1st September 1923. The petitioner in this Court was the auction purchaser of certain properties which were sold in execution of a Civil Court decree. The opposite party, who is the judgment-debtor, applied for setting aside the sale under the provisions of Order XXI, Rule 90 of the Code. That application failed in the Court of first instance. On appeal the learned Subordinate Judge passed the following order: "The result is that this appeal is allowed and the case remanded to the Court below for a fresh trial in accordance with law and in the light of these directions indicated above. On this express condition that the appellants do pay to the contesting opposite party respondents a sum of Rs. 50 as costs within a week in default therein this appeal shall stand dismissed without further reference to this Court."

The order was duly signed by the learned Subordinate Judge and there is no question that it was a good and operative order. It is conceded that the sum of Rs. 50 was not paid by the opposite party within the time allowed by the Court; but the opposite party made an application to the learned Subordinate Judge, after the expiry of the period of limitation by the Court, for leave to put in the money on the ground that he was not aware that the money should be filed within 7 days from the date of the order of the Appellate Court, The learned Subordinate Judge accepted the excuse put forward on behalf of the opposite party and exercised the power u/s 148 of the CPC and extended the period for paying the money into Court. He thought that in the circumstances of the case he should exercise his inherent jurisdiction in the matter.

Now, I should like to point out that the learned Subordinate Judge had no power whatever to exercise u/s 148 of the Code. Section 148 provides as follows: "Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period even though the period originally fixed or granted may have expired." Now the doing of the act in this case, namely, paying the sum of Rs. 50 to the petitioner was not the doing of an act prescribed or allowed by the Code. In these circumstances Section 148 has no application whatever. It is obvious that Section 148 applies only to the case of an act by the party under the CPC itself, nor in my opinion, was there any inherent jurisdiction in the Subordinate Judge be vary the order passed by him on the 23rd July 1923.

But the question is whether I should inter-fere with the order passed by the learned Subordinate Judge. Ib is well sebbled that jurisdiction u/s 115 should nob be exercised by this Court except in aid of justice. The respondents were no doubt late in bringing the money into Court; but they were late only by a single day, and the circumstances show that they have a substantial grievance in the way the case-was tried in the Court of first instance. In these circumstances I do nob think that I should interfere in this case, although I am clearly of opinion that the order passed by the learned Subordinate Judge was wrong.

I would, therefore, dismiss this application but in the circumstances of the case, without costs.