Abu Muhammad Mian v. Babu Muckut Pertap Narain

Roe, J.:— This is an appeal against a decree for pre-emption. The learned Subordinate Judge has arrived at final findings of fact that the necessary legal ceremonies were performed. The decree is open to criticism only on the ground that the learned Subordinate Judge directed that the money fixed as the price for the pre-emption should be deposited within one month of the date of the delivery of his judgment, that it was not so deposited and that therefore under Or. XX, r, 14, the suit stood in fact dismissed from the date of the failure to make the necessary deposit. The actual facts of the case are, that on the last day fixed for the deposit of the money, the decree-holder made an application to the Court for an extension of time to make the deposit; that application was granted, a month's time was given and the deposit was made within that month. It is contended that the order granting this extension was made without jurisdiction and should be set aside under sec. 115, the consequence of the setting aside of that order being that the right of pre-emption has not been exercised and the suit fails. I am of opinion that sec. 148 covers a case of this nature. The only authorities which have been put before us in respect of suits for pre-emption are to be found in Jai Kishen v. Bhola Nath(1) and Jaggar Nath v. Jokhu Tewari(2). In neither of these cases were any applications made for extention of time, in neither of them was any extension granted. It is clear that these two cases are distinguishable from the case before us. Under sec. 148 discretion is vested in the Subordinate Judge to extend the time within which the act prescribed by his decree should be done. It may be that the discretion exercised in this particular case was unwisely exercised; it may be that the Subordinate Judge should have issued notice to the other side before granting the application, the fact remains that under sec. 148 the Court has discretion vested in it to pass the order now under criticism. It is not possible for us to interfere under sec. 115. The appeal is dismissed with costs. The rule issued is discharged. We make no order as to the costs of the Rule.

Sharfuddin, J.:— I agree.

A.K.R

Appeal dismissed, Rule discharged.