(Polavarapu) Ankayya vs (Gaddamanugu) Subhadrayya and Others

Anantakrishna Ayyar, J.—These are two revision petitions filed by defendant 2 in O. S. No. 446 of 1925 on the file of the District Munsif of

Bezwada. O. S. No. 446 of 1925 instituted by the plaintiff Subhadrayya was allowed on 7th April to be withdrawn with permission to bring a

fresh suit, but he was directed to pay costs of defendant 2 (the petitioner before me) on or before 7th May 1926.

The material portion of the order is as follows:

the plaintiff will pay defendant 2''s costs Rupees 56-4-0 incurred till now within one month from this date and that in default the suit will stand

dismissed with costs.

The costs were as a matter of fact paid, on 8th May 1926 into Court. It will be noticed that it was just one day too late having regard to the time

mentioned in the decree. The plaintiff therefore filed an application in the District Munsif''s Court purporting to be u/s 148 Civil P.C., asking the

Court to extend the time mentioned in the decree for payment of defendant 2''s costs. That application was dismissed on the ground that the Court

had no jurisdiction to extend the time u/s 148 of the Code. Subsequently the plaintiff applied again to the District Munsif for extension of time, the

application taking the form of an application to review the prior order passed by the District Munsif. The plaintiff quoted the decision in

Periamuthirian v. Karuppanna Muthirian [1906] 29 Mad. 370 as an authority for the position that the Court could in such cases grant the prayer

for extension of time. The District Munsif held on this occasion that he had power, and on the merits came to the conclusion that a proper case had

been made out for granting the review and extending the time. Against that order defendant 2 preferred an appeal to the Subordinate Judge''s

Court at Bezwada. The Subordinate Judge held that in the circumstances no appeal lay to his Court, and that defendant 2''s remedy if any was to

apply to the High Court. He accordingly dismissed the appeal but made no order as to the costs of the appeal. Defendant 2 has accordingly filed

two revision petitions to the High Court, Civil Revn. Petn. No. 556 of 1928 being against the order passed by the Subordinate Judge on appeal

and Civil Revn. Petn. No. 656 of 1928 being against the order passed by the District Munsif on the second occasion.

On behalf of defendant 2 his learned advocate argued that having regard to the provisions of Section 148, Civil P.C., the present is not a case

where the plaintiff could apply to the Court for extension of time u/s 148. He drew my attention to the fact that the decree in the present case is a

self-contained one. It mentioned in the very first instance the amount of costs that the plaintiff has to pay to defendant 2, and it also mentioned the

time within which the said costs should be paid; and the decree proceeded further to state that in case costs be not so paid the suit shall stand

dismissed. I agree with the learned advocate for the petitioner that Section 148 does not apply where time is allowed for doing an act by the

decree in a suit. It is not necessary to mention authorities; Dharmaraja Ayyar v. Srinivasa Mudaliar [1916] 39 Mad. 876, is sufficient for the

purpose. In fact as I said, the learned advocate for the plaintiff respondent conceded before me that that proposition could not, at present, be

contested.

The argument of the learned advocate for the plaintiff-respondent was that in substance the two applications filed by the plaintiff, chiefly the

second of them, should be viewed not with reference solely to the section under which they were purported to be filed, but with reference to the

substance of the same, and he laid stress on the point that, having regard to the fact that Periamuthirian v. Karuppanna [1906] 29 Mad. 370 is

quoted in the second of the petitions, the same must be taken to be an application to review the decree in the case itself; and he referred me to the

decisions in Narayanaswami v. Natesa [1893] 16 Mad. 421, Joseph Brito v. Mrs. Brito AIR 1924 Mad. 586 and (Tiruvallur Vangipuram)

Krishnamacharulu Vs. Chitlur Venkata Subbiah, , in support of his contention. I must admit that I had great difficulty in coming to a conclusion

whether the plaintiff had properly approached the Court to exercise in the circumstances the jurisdiction to exercise the leniency which the District

Munsif has in fact shown to him. In the first place, the first application filed by him u/s 148 is not one which could possibly be complied with by the

Court. No doubt, as I have already mentioned, Courts should not consider an application only with reference to the section under which it is

purported to be filed.

The difficulty that I was feeling all along has been as to what is the effect of the second ""application which purported to be an application to

review the order passed on the first application. But having regard to the fact that Periamuthirian v. Karuppanna [1906] 29 Mad. 370 is mentioned

and having regard to the real and obvious request in these applications namely, that the decree in the suit has to be reviewed and the time

extended, I have, after some hesitation, come to the conclusion, in this case, remembering that should regard the real substance of the application

and not be guided solely by the section quoted in the same. In this case, it is clear that the Court had the jurisdiction to review the decree. If Courts

have got inherent power to entertain an application and grant the relief prayed for therein, the circumstance that a wrong section is quoted should

not be taken too much into account when the High Court is asked to exercise its powers of revision in such matters. Having regard to the fact that

on the merits the District Munsif himself was satisfied that a case for review had been made out and that the delay was only one day (the allegation

being that the chalan was received only on the last day and that before the money could be paid into the bank it was too late), I think that I would

be allowing technicality to govern my decision at the sacrifice of justice if I were to interfere in revision in this case. Joseph Brito v. Mrs. Brito AIR

1924 Mad. 586 supports the view taken by me. But I am clear that the plaintiff should be made responsible so far as the costs of these

applications are concerned.

I confirm the order passed by the District Munsif on 24th January 1927 which I construe to be passed by way of review of the decree in O. S.

No. 446 of 1925, extending the time mentioned in that decree. I direct that these two revision petitions do stand dismissed, but that the plaintiff-

respondent before me should pay the costs of defendant 2 in I. A. No. 1476 of 1926 and in this Court. Having regard to what I have said, no

further orders are necessary in Civil Revn. Petn. No. 546 of 1928 which will be simply dismissed without any order as to costs.