Doraiswami Chettiar and Others vs Govindaswami Chettiar

Veeraswami, J.—In C. M. P. No. 4304 of 1961 this Court made a conditional interim stay of execution in respect of a path-way and

recovery of possession of certain tamarind trees. The condition was three-fold namely that the petitioner in that petition should deposit a sum of Rs.

2000 within a specified time and furnish security within the same time for a sum of Rs. 1000 and further deposit in the trial Court every year a sum

of Rs. 350 the first payment to be made on 1st July 1962. The order made certain other further directions which are not relevant for present

purposes. There was no direction in the order as to what is to happen in the event of a default to comply with any one or more of the conditions

prescribed. It is common ground that the sum of Rs. 2000 was deposited within the time allowed, out of which a sum of Rs. 1000 has been drawn

out by the respondent. In respect of the furnishing of security for a sum of Rs. 1000, it is stated that the petitioner deposited cash of Rs. 1000; So

far as the condition for payment of Rs. 350 on 1st July 1962 is concerned, it is admitted that this condition was not complied with; whatever the

excuse for the default may be. The respondent appears to have been very diligent and lost no occasion to execute the decree for possession. The

respondent produces a certified copy of a delivery athakshi, from which it appears that the respondent had taken delivery of the trees on 4th July

1962.

This application was presented on 7th July 1962 asking this Court to extend the time for depositing the sum of Rs. 350 due to be deposited on 1st

July 1962, by reviewing the earlier order, if necessary and ""relieve the petitioners of the consequences resulting from the non-payment on the due

date and allowing them to continue in possession of the suit properties."" It seems to me to be obvious that this prayer cannot be granted, for where

a conditional order has been made and the condition is not complied with, even though there is no clause in the order providing for the effect of a

default, the interim order ceases to operate. In such circumstances, there was no impediment in the way of the respondent executing the decree for

possession, and the delivery of possession of the trees to the respondent on 4th July 1962 was, therefore, proper and lawful.

It is true that if delivery had not been made, the question whether the delay in complying with the condition relating to the sum of Rs. 350 could

have been excused might have arisen for consideration. But, in the particular circumstances of this case, even if I excuse the delay I do not think

that it will automatically have the effect of restoring possession to the petitioners. As a matter of fact, the petitioners'' prayer is that they might be

permitted to continue in possession. I do not see how this could be for, once delivery of possession had been made, no question of permission to

continue in possession can arise.

In the circumstances, I consider that although the petitioners have complied with some of the conditions of the interim order, inasmuch as the rest

of the conditions have not been complied with, the interim order ceased to operate from 2nd July 1962. The stay petition appears to me, therefore,

to have become Infructuous.

Sri M.S. Venkatarama Aiyar, who has argued this petition strenuously on behalf of the petitioners, invites my attention to Mahanth Ram Das Vs.

Ganga Das, . There, a Division Bench of a High Court had fixed a certain time for payment of deficit court-tee but there was default. The High

Court considered that once the time granted had run out, it could not further extend the time. On appeal to the Supreme Court, it was held that the

High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment and reference was made to the

terms of Sections 148 and 149 C. P. C. I fail to see how the principle of this case is applicable to the facts in the instant petition. As I said, the

interim order was a conditional one which means that unless the condition was performed on the prescribed date, the interim order could not

survive. There is even a more insuperable difficulty, namely, factually delivery had been effected and the respondent had taken possession, and it is

not possible, therefore, to grant the prayer of the petitioners to permit them to continue in possession under guise of extending the time for

performing the condition relevant to the payment of the first instalment of Rs. 350. The petition is dismissed.

No Costs.