1. Facts.--In a compromise decree passed against the opposite party it was ordered that on payment of Rs. 1000 to the plaintiff immediately and the sum of Rs. 12,600 on or before 31-3-1923 the plaintiffs claim would be discharged in full, but if the opposite party failed to pay as above the plaintiff should realize her full claim for Rs. 20,989-9-0 with costs and future interest. On the date of compromise Rs. 1000 were duly paid, but on 31-5-23 the defendants brought into Court only Rs. 6,000 and the plaintiff received the same under protest. As regards the balance of Rs. 6,600 the defendants asked for an extension for one month. The Subordinate Judge on 4-6-23 granted extension and ordered that payment would be accepted on or before 30-6-23, if the defendants paid to the plaintiff a sum of Rs. 164 as intermediate interest. Plaintiff applied for revision of the order allowing extension.
Mullick, J.
2. [His Lordship after stating facts continued.] It is contended by the petitioner that no extension of time can be given without the consent of the parties and reliance is placed upon Australian Automatic Weighing Machine Co. v. Walter [1891] W.N. 170; but the matter has been exhaustively considered in Kandarpa Nag v. Banwari Lal Nag [1921] Cri.L.J. 244 and it seems now settled that no general rule can be laid down and that although a contract may have ripened into a decree the Court will not be precluded from giving relief which it would have been competent to give if it had been called upon to adjudicated, upon the contract in the first instance and without its having been embodied in a decree. There are cases which have held that when a compromise takes place between an auction-purchaser, a judgment-debtor and a decree-holder stipulating that the sale would be set aside on the payment of the judgment debt on a certain date time was of the essence of the contract, On the other hand it seems to be now settled that where the agreement is for the payment of money on a prescribed date and that upon default of payment on that date money or land is to be forfeited, time is not of the essence of the contract. Indeed the rule is clear that in every case the Court must determine upon the faces, of the case whether relief against forfeiture is to be given or not. I have no doubt that in the present case the Subordinate Judge had jurisdiction to determine whether time was of the essence of the contract. He has decided that it was not and, therefore, it does not seem to me that Section 115 can be invoked for the purpose of setting aside the learned Subordinate Judges order. The learned Subordinate Judge in one part of his judgment expresses the view that Section 148 is applicable to the case, but I would prefer to base his jurisdiction on the general rules of equity.
3. The only question that remains is whether we should further extend the time. Having regard to the fact that the application to this Court was made without much delay and that the defendants were uncertain whether the learned Judges order would be affirmed by the High Court I think this is a fit case for granting further extension; and we give seven days further time from this date for complying with the order of the Subordinate Judge. [His Lordship then concluded;].
4. We direct that if the defendants deposit in the Court of the Subordinate Judge the sum of Rs. 6,600 on account of the decretal sum together with the sum of Rs. 200 on account of intermediate interest, that is to say a total sum of Rs. 6,800 on or before the 10th July, full satisfaction will be entered in respect of the claim as provided by the compromise decree and that on default the terms of the said decree will be duly enforced according to law. There will be no order as to costs.
Bucknill, J.
5. [His Lordship concurred in the above judgment.]
Mt. Nand Rani Kuer v. Durga Dass Narain
Mt. Nand Rani Kuer v. Durga Dass Narain
(High Court Of Judicature At Patna)
| 03-07-1923
Advocate List
Bench
- HON'BLE JUSTICE Mullick, J
- HON'BLE JUSTICE Bucknill, J
Eq Citations
- AIR 1924 PAT 387
- LQ/PatHC/1923/219
Head Note
A. Civil Procedure Code, 1908 — S. 115 — Revision — Revisional jurisdiction — Exercise of — Compromise decree — Payment of decretal amount — Time for payment — Whether of essence of contract — Determination of, by court — Held, no general rule can be laid down and that although a contract may have ripened into a decree the Court will not be precluded from giving relief which it would have been competent to give if it had been called upon to adjudicate upon the contract in the first instance and without its having been embodied in a decree — There are cases which have held that when a compromise takes place between an auction-purchaser, a judgment-debtor and a decree-holder stipulating that the sale would be set aside on the payment of the judgment debt on a certain date time was of the essence of the contract — On the other hand it seems to be now settled that where the agreement is for the payment of money on a prescribed date and that upon default of payment on that date money or land is to be forfeited, time is not of the essence of the contract — Indeed the rule is clear that in every case the Court must determine upon the facts of the case whether relief against forfeiture is to be given or not — In the present case the Subordinate Judge had jurisdiction to determine whether time was of the essence of the contract — He has decided that it was not and, therefore, it does not seem to be that S. 115 can be invoked for the purpose of setting aside the learned Subordinate Judge's order — The learned Subordinate Judge in one part of his judgment expresses the view that S. 148 is applicable to the case, but the learned Judge's jurisdiction based on the general rules of equity — Compromise decree — Payment of decretal amount — Whether time is of essence of contract — Held, no general rule can be laid down and that although a contract may have ripened into a decree the Court will not be precluded from giving relief which it would have been competent to give if it had been called upon to adjudicate upon the contract in the first instance and without its having been embodied in a decree — There are cases which have held that when a compromise takes place between an auction-purchaser, a judgment-debtor and a decree-holder stipulating that the sale would be set aside on the payment of the judgment debt on a certain date time was of the essence of the contract — On the other hand it seems to be now settled that where the agreement is for the payment of money on a prescribed date and that upon default of payment on that date money or land is to be forfeited, time is not of the essence of the contract — Indeed the rule is clear that in every case the Court must determine upon the facts of the case whether relief against forfeiture is to be given or not — In the present case the Subordinate Judge had jurisdiction to determine whether time was of the essence of the contract — He has decided that it was not and, therefore, it does not seem to be that S. 115 can be invoked for the purpose of setting aside the learned Subordinate Judge's order — The learned Subordinate Judge in one part of his judgment expresses the view that S. 148 is applicable to the case, but the learned Judge's jurisdiction based on the general rules of equity — Compromise decree — Payment of decretal amount — Whether time is of essence of contract — Held, no general rule can be laid down and that although a contract may have ripened into a decree the Court will not be precluded from giving relief which it would have been competent to give if it had been called upon to adjudicate upon the contract in the first instance and without its having been embodied in a decree — There are cases which have held that when a compromise takes place between an auction-purchaser, a judgment-debtor and a decree-holder stipulating that the sale would be set aside on the payment of the judgment debt on a certain date time was of the essence of the contract — On the other hand it seems to be now settled that where the agreement is for the payment of money on a prescribed date and that upon default of payment on that date money or land is to be forfeited, time is not of the essence of the contract — Indeed the rule is clear that in every case the Court must determine upon the facts of the case whether relief against forfeiture is to be given or not — In the present case the Subordinate Judge had jurisdiction to determine whether time was of the essence of the contract — He has decided that it was not and, therefore, it does not seem to be that S. 115 can be invoked for the purpose of setting aside the learned Subordinate Judge's order — The learned Subordinate Judge in one part of his judgment expresses the view that S. 148 is applicable to the case, but the learned Judge's jurisdiction based on the general rules of equity — B. Civil Procedure Code, 190
