Rangammal vs C.J. Carrom

Ganapatia Pillai, J.—This revision petition is directed against the order of a judge of the Court of Small Causes, Madras, reviewing the order made by him in Miscellaneous Petition No. 2408 of 1960, and extending time by a day for deposit of costs by the Defendant, in a small cause suit, at whose instance the ex parte decree, already passed, was set aside.

The order setting aside the ex parte decree was a self-contained order in that it fixed a time for payment of costs as a condition precedent to the ex parte decree being set aside, and, provided that, in default of payment of costs within the time allowed, the application for setting aside the ex parte decree should stand dismissed.

The learned Judge in the Court below relied upon S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, , as conferring power or jurisdiction upon him to review the earlier order passed by him. Obviously, the learned Judge overlooked the fact that the decision relied upon by him did not relate to the Presidency Small Cause Courts. Counsel for the Respondent, therefore, did not seek to support the order based upon any power of review, but, he said, that u/s 148, Code of Civil Procedure, the lower Court had power to extend the time for payment of costs. It is true that Section 148, Code of Civil Procedure, applies to the Small Cause Court, Madras. It is also well established that under that section the Court has power to extend the time for doing an act or for depositing money in pursuance of the order of the Court even after the expiry of the period originally fixed for the purpose. But, whether in the case of an order like the one I am concerned with now, such power could be exercised after the expiry of the period fixed for payment of the costs, is the question for consideration.

In this Court it has been held that if the order works itself out but with reference to the period within which the costs should be deposited, and, the proceeding under which the order for deposit of costs was made, stands dismissed on the happening of the contingency contemplated, viz., non-deposit of costs within the time allowed, the Court could not exercise its jurisdiction u/s 148, Code of Civil Procedure, for extending time for the deposit, and, impliedly reviewing the order already passed except where the Court passing the order is invested with the power of review. A similar case came up for consideration before Balakrishna Ayyar, J., in D. Sitaraman and Others Vs. S.S. Pattabhiraman alias Rathnam, . The learned Judge reviewed many of the cases on the point and preferred to follow the dictum laid down in S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, . It is said that this view is impliedly overruled by the decision of the Supreme Court in the recent case, Mahanth Ram Das v. Ganga Das (1962) 1 M.L.J. 167 (S.C.). There, the Patna High Court allowed the appeal, and, directed the deficit court-fee on the amended relief for possession be paid within three months from the date of ascertainment of the same by the office and communication thereof to Appellant''s Counsel. As part of that order, the High Court stated that, failing payment within the time, the appeal should stand dismissed. The Appellant was informed on 8th April 1954, what the deficit court-fee was. On 8th July 1954, viz., on the last date of the three months allowed by the order of the High Court, the Appellant applied to a single Judge then sitting for permission to pay one thousand and four hundred rupees (part of the deficit court-fee due) and to pay the balance of the deficit court-fee in a month thereafter. This application was heard on 13th July 1954, by a Division Bench. The Bench took the view that the appeal already stood dismissed as the amount was not paid within the time given, and, refused to grant the request. Thereafter, the Appellant moved an application u/s 151, Code of Civil Procedure, for the same purpose which was rejected on 2nd September 1954, with the remarks, the proper remedy was review. Subsequently, a further application was made u/s 151, Code of Civil Procedure, read with Order 47, Rule 1 of the Code, which was heard on 27th September 1955, by another Bench. This Bench took the view that Section 148 and Section 149 applied only to cases which were not finally disposed of and that time could be granted under these provisions only before the final order was made. On this reasoning the request to extend the time was rejected. On these facts, the Supreme Court held that Section 148, Code of Civil Procedure, in terms allowed extension of time even when the original period fixed had expired and that Section 149 also applied in such cases. A Fortiori the Supreme Court held that these sections could be invoked if the time fixed had not actually expired.

It could be seen that the observations of the Supreme Court in disposing of the case should be understood with reference to the first application made on the last date of the three months'' period allowed by the order in the judgment disposing of the appeal for payment of the deficit court-fee. Though the Supreme Court held that the High Court was in error on both the occasions, and, time should have been extended even on 13th July 1954, on the first application made within the time fixed for payment of the deficit court-fee, the ratio decidendi of the decision cannot be extended to a case where the application for extension of time was made after the first order had worked itself out. This decision is, therefore, no authority for the contention that the power exercised by the Small Cause Court Judge in this case would fall within the ambit of Section 148 , Code of Civil Procedure.

The same view has been taken of the scope of the Supreme Court decision by Tare, J., of the Madhya Pradesh High Court in Buta Singh Shankar Singh Vs. State of Madhya Pradesh, .

It is thus clear that the Supreme Court decision could not apply to a case where a judge extending the time for payment of money, as here, had no power of review, but could only exercise the power u/s 148, Code of Civil Procedure, in cases where the original order had not worked itself out and the other party had not acquired a vested interest by reason of the expiry of time. The revision petition is, therefore, allowed and the order of the Small Cause Court Judge granting extention of time is set aside with the result that the order of dismissal of the application to set aside the ex parte decree will be restored.

There will be no order as to costs.