D. Sitaraman and Others vs S.S. Pattabhiraman alias Rathnam

Balakrishna Ayyar, J.—In C.M.P. No. 2995 of 1957 the appellants in S.A. No. 326 of 1957 applied for stay of the execution of the decree

of the Court below. On 2nd September, 1957, Ramaswami, J., passed the following order in the C.M.P.:

Stay asked for will stand granted if security is furnished in the sum of Rs. 5,000 to the satisfaction of the trial Court within two months from the

date of this order and failing which this application will stand dismissed with costs. This will be in addition to the sum of Rs. 2,000 already

deposited, which will not be allowed to be withdrawn pending disposal of the appeal by the appellants.

In order to obtain the benefit of this order the appellants had to furnish security by 2nd January, 1957. On 25th October, 1957, they tendered

security of property which was valued by the Amin at over Rs. 11,000. Objection was taken that the 1st petitioner had only a fractional interest in

the property and that therefore the security was insufficient. On 4th December, 1957, trial Court called for additional security and time was given

till 19th December, 1957. On 18th December, 1957, additional security was tendered, but objection was then taken that the Court had no

jurisdiction to extend the time. So the petitioners filed C.M.P. No. 333 of 1958 in this Court for extension of the time that had been granted by

Ramaswami, J., in C.M.P. No. 2995 of 1957.

The question is whether in view of the default clause attached to the order this Court has jurisdiction to extend the time.

Mr. Gopalaswami Ayyangar, the learned advocate for the petitioners, referred to Section 148 of CPC and argued that Ramaswami, J., had

given time under that section and that under the terms of that section this Court has power to enlarge the time even though the period originally

fixed may have expired. Section 148 no doubt empowers the Court in its discretion to enlarge or extend the time for the doing of an act. But then,

it presupposes, that the suit or appeal or proceeding in which time was granted is still pending. Where the suit, appeal or other proceedings has by

virtue of any orders passed by the Court ceased to exist so to speak, Section 148 can have no application. In the present case it is true that S.A.

No. 326 of 1957 is still pending. But by reason of the order made by Ramaswami, J., on 2nd September, 1957, C.M.P. No. 2995 of 1957 is no

longer pending. This will mean, therefore, that the present application C.M.P. No. 333 of 1958 to extend the time in C.M.P. No. 2995 of 1957

will not lie. If the matter were res Integra I would have been inclined to say that time cannot be extended in C.M.P. No. 2995 of 1957 but that it

would be open to the petitioner to file a separate application for stay. But, as will presently appear the matter is not res integra.

Mr. Gopalaswami Ayyangar referred me to the decision in (1889) L.R. 17 I.A. 1 (Privy Council) , where the Privy Council held:

Where the High Court, u/s 549, Civil Procedure Code, has demanded security from an appellant, it has power to extend the time for complying

with this order on application made, as well after as before the time first fixed has expired; and may nevertheless reject the appeal, under that

section, if the security is not in the end furnished.

At page 515 their Lordships observed:

In the present case it appears to their Lordships that the High Court were wrong in holding that they had no power to extend the time for giving the

security, and that they were bound, by Section 549 to reject the appeal.

But when we examine the facts of the case we find that there was no default clause attached to the original order. What happened in that case

was this. On 12th February, 1885, an order was made by the Calcutta High Court directing that the appellant should within two months furnish

security to the extent of Rs. 5,000 in respect of the costs of the appeal before it, and of the original suit. The order stood thus and no default clause

was annexed to it. So too was the case in Manley Estates Ltd. v. Benedek (1941) 1 All. E.L.R. 348, which Mr. Gopalaswami Ayyangar next

read. I was then referred to Sheikh Md. Maracair v. V.M. Thevar (1951) 1 M.L.J. 527. The material facts there were as follows : A.S. No. 498

of 1951 was filed in forma pauperis against the decree of the District Court of East Tanjore. On nth March, 1952, Ramaswami, J., directed the

appellant to furnish security for costs in the Court below within one week of the reopening of that Court after the summer recess. The learned

Judge also proceeded to say that in default of furnishing security the appeal would stand dismissed. The appellant did not furnish security in time.

But, for some reason or other, the appeal itself was never posted formally for being dismissed. On 18th September, 1953, the appellant filed an

application for excusing the delay in applying for extension of time for furnishing security. That application was dismissed. During the arguments in

the appeal which was preferred from the order of dismissal Mr. Kuppuswami Ayyar raised the objection that the Court had no jurisdiction to

extend the time to furnish security after the time originally fixed had expired. That contention was negatived.

When that case is examined carefully it will be noticed that though in the order he made on nth March, 1952, Ramaswami, J., had said that if

default were made in furnishing security the appeal would stand dismissed he had no jurisdiction to pass any such order because it was a regular

appeal of the value of over Rs. 20,000 and only a Bench of this Court could have dismissed that appeal. Therefore, the position is the same as

though no default clause had been attached and the appeal was still there.

Mr. Ramakrishnan who appeared along with, Gopalaswami Ayyangar read the decision in Printing and Industrial Machinery Ltd. v. Swastika

Press Ltd. 90 Cri.L.J. 105. That case fully supports the contention he raised. In that case an order had been passed substantially in these terms:

Upon the defendant furnishing security for the sum of Rs. 7,075 within a fornight, stay of execution granted. In default of the security being so

furnished the application stands dismissed.

The learned Judge examined the matter very exhaustively and reached the conclusion that in respect of the default clause the Court had power

to extend the time. He referred to S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, , but declined to follow it since in his view

the reasoning there was not sound.

On the other side, I was referred to the following passages on pages 470 and 471 of Mulla''s ""Civil Procedure Code"":

Principle underlying the section. - The application of this Section (Section 148) to a case depends on the position whether the matter has been

finally disposed of by the Court or the Court is seized of the matter and has control over it. If the order is not final and the Court retains its control

over and is seized of the matter, it has full power to make any just or necessary order therein including in appropriate cases the extension of the

time under this section. On the other hand, if the effect of the order is that in the event of non-compliance, it operates automatically and without

further intervention of the Court, this section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and

becomes functus officio.

* * * * * *

Thus if the order is that security shall be given within a month ''otherwise the petition shall stand dismissed'', or extra Court-fee shall be paid within

a week ''otherwise the suit shall stand dismissed'' or ''the appeal shall stand dismissed'' or the decree shall be a nullity, or the decretal amount be

paid within ten days, otherwise the application shall stand dismissed, no extension can be granted. If, however, the order is that deficit Court-fee

be paid within a fortnight ''otherwise the plaintiffs will not be entitled to the decree and the suit will be dismissed''; or if the application be made

before the expiry of the period prescribed, extension can be granted. But when an order stayed execution of a decree on condition that the

appellant should make a payment of rent and assessment within a stated time, an extension was allowed as there was no express direction that

execution should proceed in default of payment.

Naturally stress was also laid on the decision of this Court in S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, .

It was explained on the other side that the view expressed in S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, , was

obiter. Strictly speaking it is no doubt so, but, there has been a full discussion of the matter and I do not think I shall be justified in ignoring this case

which appears to have been consistently followed in this Court. Besides and quite recently a Bench of the Andhra High Court in Peda Kaper

Saheb v. Perecherla Nabi Saheb (1956) 2 An. W.R. 177, has followed this decision. They observed:

For the aforesaid reasons, we respectfully agree with the judgment of the Division Bench of the Madras High Court in S.S. Balakrishna Aiyar and

Another Vs. Parvathammal and Another, .

I would therefore dismiss this application. The petitioners may, if so advised, the either a separate petition for stay or a petition for review of

the order made on 2nd September, 1957.