Chandra Goundan and Others vs Palaniappa Goundan and Others

A decree was passed ex parte against the parties in Original Suit No. 533 of 1915 by the District Munsif, Erode, and they applied to get it set

aside under Order IX, rule 13. The Munsif, after hearing the parties, passed an order stating, '' I shall restore the suit if the defendants pay into

Court the entire costs of the plaintiff except the institution fee, and also the respondents'' costs of this application on or before the 7th April 1916.

The costs were not so paid, but on the 1st April petitioners applied again to have the suit restored to the file and reheard on the merits, stating that

they were ready and willing to pay the costs into Court as ordered and that their failure to do so in time was due to their not having known of the

order in time. The Munsif has treated this application as in substance one for extension of time and though he found that the case was one eminently

fit for granting an extension, he held he had no power in law to grant any extension and dismissed the petition. The revision petition to this Court is

against this dismissal.

Even under the old Code their Lordships of the Privy Council held in a case u/s 549 of that Code that the Court had power, apparently an

inherent one, to grant extension of time to famish security on application made for it, whether after or before the expiry of the time first) fixed. See

Badri Narain v. Sheo Koer 17 C. 512. They held that the power existed in spite of the words. in the section, ""the Court shall reject the appeal.

The Allahabad High Court has applied this view to Section. 10, Clause (1897) A. W. N. 40 of the Court Fees Act in Chunni Lal v. Ajudhia

Prasad 19 A. 240 and this Court has followed that ruling in Subrahmanyam v. Ramasawmy 9 M. L. J: 348. It follows, therefore, that even if Order

IX, rule 13, stood by itself, applying the same principle it must be held the Court had power to grant the extension in the present case; and Section

151 of the Code expressly saves such inherent powers.

The new Code has, however, enacted Section 148, which expressly gives powers to Courts to enlarge from time to time the period originally

fixed for the doing of any act prescribed or allowed by the Code. There can be no doubt that the act that the defendants had been directed to do

in the present'' case, viz., to pay the costs into Court, is an act allowed by the Code, for rule 13 says that the Court may impose such terms as to

costs, payment into Court or otherwise as it thinks fit. I am of opinion that the words'' of rule 13 should not be on construed too narrowly and that

they are wide enough to cover the present case. The same view was taken in the case of Jagarnath Sahi v. Kamta Prashad 23 Ind. Cas. 138, in

similar circumstances. The case in Moideen Kuppai v. Ponnuswamy Pillai 26 Ind. Cas. 63 cited for the respondents is an entirely different one, as

the time sought to be extended there was the time fixed in a conditional decree for delivery of property on payment of a sum of money within a

certain time. The condition or the act required was one which bad nothing to do with the old Code but was prescribed purely by the decree and

their Lordships held that Section 148 did not apply. The present case is in no way analogous to it. A similar case in Suranjan Singh v. Rambahal

Lal (6) was distinguished in the same way by the learned Judges in Jagarnath Sahi v. Kamta Prashad 23 Ind. Cas. 138, the ease above cited.

If the Court had passed final orders rejecting the application under rule 13 for non-compliance with the terms imposed it may be that an

application by way of review will be required to enable the Court to put it on the file again and pass fresh orders thereon. If it were necessary to do

so, I think the application of the petitioners of the 18th April may well be treated as an application for review. But I am of opinion that in the

present case it is not necessary to do so, as I consider that their first application was still pending when they applied again on the 18th. The

wording of the first order of the Munsif, viz., ""I shall restore"" seems to contemplate a further order even for the purpose of setting aside the decree.

The order did not go on to say that if the condition was not complied with, the application was to stand dismissed. Though dismissal may be the

natural'' result of the failure to comply with the condition imposed, if no other orders are passed before the petition is finally rejected,? it does not

follow that the petition had held disposed of by the mere noncompliance without final order of rejection being passed. No such order was passed

in this case. The petition, therefore, may well be treated as pending on the 18th of April when the second application was made and that the Court

was still seized of it.

I am, therefore, of opinion that the lower Court was wrong in thinking that it had no power to grant further time. Respondents'' Vakil has urged

that even if that be so, I should not interfere in revision and correct the mistake, because he says the order sought to be revised should be treated

as one finally rejecting the application to set aside the ex parte decree and is appealable as such to the District Court under Order XLIII, rule 1,

Clause (d), and he relies upon the same case above citedin Jagarnath Sahi v. Kamta Prashad 23 Ind. Cas. 138. In that case, the matter was taken

up to the High Court by way of appeal against the formal order which was finally passed rejecting the petition under Order IX, rule 13. Against

that order, an appeal dearly lay. In the present case, the revision is against the order which refused in terms only the extension asked for and

admittedly there is no appeal against such order. At the time this revision petition was filed no final order rejecting the original application had been

passed; it does not appear that any sash order has been passed even since then. In these circumstances, I do not think I should refuse to act in

revision on the ground that petitioners should have obtained a formal order of dismissal of their original petition and appealed against that to the

District Court. They were not bound to get such an order. I am unable to treat the order refusing the extension as an order of dismissal of their

original petition for the purpose of getting rid of a revision petition which is clearly well founded. I overrule the objection.

In the result, I set aside the order of the lower Court in I. A. No. 689 of 1916 and direct that Court to pass fresh orders on it according to law,

giving a reasonable time to the petitioners for the payment into Court of the costs ordered. The respondents will pay the petitioners their costs in

this Court. The lower Court will itself dispose of the costs in that Court.