Peda Nasar Saheb vs Pereeherla Nabi Saheb

Subba Rao, C.J.—Unianiaheswararn, J., has referred the above revisions to a Division Bench on the ground that it was necessary that the Bench should consider how far the decision in Manley Estates Ltd. v. Benedek, 1941-1 All ER 248 (A), affected the reasoning in S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, (B).

The facts aro simple and may be briefly staled. The Respondent obtained a decree ex parte for possession against the Petitioner . On an application Bled by the Petitioner to set aside the ex parte decree, the Court made the following Order:

By consent, the ex parte decree will be set aside on condition of the Petitioner depositing into the Court the costs awarded by the decree as condition precedent by 2 p.m. on 14th July 195.1. In default the petition will stand dismissed.

The amount was not deposited before 2 p.m. on 14th July 1951. The result was that die application stood dismissed on that date. Therefore, the Petitioner filed two applications for extending the time for depositing the amount and for reviewing the order. The learned fibordinate Judge relying upon the deci-Kiorijm a Division Bench of the Madras High Court ln/S3 S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, (B), dismissed the applications. When the Civil Revision f Petitions came up before Umamaheswaram, J., for disposal, the learned Judge, for the aforesaid reasons, referred the matter to a Bench.

In S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, (B), the facts were: Pending an appeal to the High Court against the decree in a suit for the administration of the estate of a deceased person, the Appellants applied for stay of proceedings and an order was passed in the following terms on 3rd September 1926:

Petitioner s to give security for list. 44,000 as found by the Commissioners to the satisfaction o/ the lower Court within three months. Otherwise, the petition to stand dismissed with costs.

On 3rd December 1926, the Petitioner s put in an application to extend the time for furnishing security but that was dismissed on 17th December 1.926, on the ground that the order of 3rd September .1926, had become effective and the proper remedy for thePetitioner s was to apply for review of that order. When reliance was placed upon the provisions of Section 48, Code of Civil Procedure, Curgenven, J., made the following observations:

Accepting, then, that an order of this kind, which remains open for a fixed period, and then, upon non-compliance with the stipulation, closes by force of its own terms, is a permissible form of order, it must in my view, follow that as soon as the time allowed has expired and the dismissal of the application has taken place, no variation of tho terms of the order can be made. The position is, in fact, precisely the same as though the order had never been passed; and the power to extend lime given Section 148, Code of Civil Procedure, cannot be invoked because not only lias the ''period originally fixed or granted'' expired, but there is no previous, order still current upon which an order extending time could operate.

After considering the case-law on the subject the learned Judge proceeded to observe:

''According this view, I do not think that there is anything in the eases cited which would Support the proposition that the Court could still have extended the time because it has nowhere been said that this can be done once an order is defunct.

The decision is a clear authority for the position that, when an application stands dismissed, the Court has no power to extend the time. This decision was delivered in 1927 and it has stood the test of time. All the High Courts followed either the'' decision or the principle recognised therein. See Gaya Din Vs. Lalta Prasad and Others, (C); Surajmal Marwari v. Bhubancswar Prasad, AIR 1940 Pal 50 (D) and. Haji Eakub Shaikh and Another Vs. Samjan Bibi and Others, (E). Wadsworth, T-, in Sreepathi Balaiah alias Bala Gurumurthy and Another Vs. Darsi Ramayya and Another, \\1T), followed the aforesaid judgment without any comment. But it is contended that the reasoning of the aforesaid judgment was shaken by the judgment of the Court of Appeal in 1941-1 All ER 248 (A). It is, therefore, necessary to consider in some detail the facts of that ease and the principle applied by the learned Judges to those facts. There, the action was on a money-lender''s debt and judgment was obtained by the Plaintiff company in default of appearance.Tire Defendant took out an application for leave to defend. The Court gave leave to defend on condition that he entered appearance within seven days and. that he; paid into Court a sum of Section 50. an appeal, the time for paying Section 50 was extended by seven days. As the amount was not paid within the time given, an application was filed for extension of time. The Court of Appeal held that R. S. C. Order 67, Rule 7, corresponding to Section 148, Code of Civil Procedure, applied and gave the extension asked for. MacKinnon, L. J., made the following observations in the course of the judgment at p. 25.1:

Here the action has not disappeared. It is in existence, and there is actually a judgment which has not been prosecuted to execution. I think that, within the words of that rule, there was jurisdiction in the matter to enlarge the time.

Relying upon this observation, it is strongly pressed upon us by the let find counsel for the petitionei that, as the decree for possession was not executed, the Court had power to extend the time in the present case though the application stood dismissed. In our view, this judgment is! not an authority for the position contended for. The facts stated clearly disclose that the Court did not dismiss the application or make an order which would automatically put an end to the application. Though a prescribed time was given for the deposit of money, there was no direction that, if the money was not paid within that time, the application for sefting aside the judgment obtained in default stood dismissed. In the circumstances, therefore, the Court had jurisdiction to extend the time under R.S.C. Order 67, Rule 7. This decision, in our view, has no bearing on the question now raised.

If an application for setting aside the ex parte decree is dismissed, it cannot be suggested, and in-1 deed it is not suggested, that after the dismissal, any I further relief can be asked for in that application. If in such an application a conditional order is made and if on non-compliance with that condition the application is dismissed by the Court, it cannot also be argued that further orders can be made in that application. If it is the legal position, we do not see how when an application automatically stands dismissed On non-compliance with a particular condition, a party will be in a better position than in the other two cases. u/s 148, CPC where any period is fixed or granted by the Court, for the doing of any act prescribed or allowed by this Code, the Court, may, in its discretion from time to time enlarge, such period even though the period originally fixed 01 granted may have expired. The period prescribed under the section can be extended only during the currency of the previous order. Once an order has become defunct, no question of extending the time made under that order can arise.

For the aforesaid reasons, we respectfully agree with the judgment of the Division Bench of the Madras High Court in S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, (B).

Tire revisions are dismissed with costs.