HUKAMCHAND versus BANSILAL & ORS.

HUKAMCHAND versus BANSILAL & ORS.

It is not open to the executing court to extend time for deposit without the consent of parties, where the original time was granted by consent following compromise. There is no power under Order XXXIV, rule 5 or section 148 CPC to grant extension after the compromise lapses and after dismissal of the application under Order XXI, rule 90. Confirmation of sale must follow under Order XXI, rule 92 unless deposit is made before confirmation.

Parties
Appellant: Hukamchand; Respondent: Bansilal; Respondent: Respondent No. 4
Jurisdiction
India
Judgment Date
19 April 1967
Procedural Posture
Civil Appeal / Appeal by Special Leave From Judgment and Order of the Bombay High Court, Nagpur Bench, Letters Patent Appeal
Outcome
appeal allowed
Legal Topics
Extension of Time in Execution Proceedings, Confirmation of Auction Sale, Mortgage Decree Execution, Right of Mortgagor to Redeem Property
Civil Procedure Mortgage Law Extension of Time in Execution Proceedings Confirmation of Auction Sale Mortgage Decree Execution Right of Mortgagor to Redeem Property

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Parties

Hukamchand

Appellant

Bansilal

Respondent

Respondent No. 4

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave From Judgment and Order of the Bombay High Court, Nagpur Bench, Letters Patent Appeal

Legal Issues

  1. 1 Whether the executing court could grant further extension of time to judgment-debtors for deposit after a consent order fixing the time expired
  2. 2 Whether section 148 of the Code of Civil Procedure or Order XXXIV, rule 5 empowers the executing court to postpone confirmation of sale

Ratio Decidendi

It is not open to the executing court to extend time for deposit without the consent of parties, where the original time was granted by consent following compromise. There is no power under Order XXXIV, rule 5 or section 148 CPC to grant extension after the compromise lapses and after dismissal of the application under Order XXI, rule 90. Confirmation of sale must follow under Order XXI, rule 92 unless deposit is made before confirmation.

Court Disposition

appeal allowed

Orders

  • Order of Letters Patent Bench and District Judge set aside
  • Order of executing court dated November 22, 1958 restored