R.M.P.R.M.M. Subramaniam Chettiar vs K.S. Subbiah Ayyar

Pakenham Walsh, J.—This is a revision petition against an order excusing delay and continuing stay in an execution petition. The Plaintiff, the

mortgagee, brought the suit against the lessee of the mortgagor and obtained a decree to recover possession and mesne profits from the defendant.

The defendant appealed and asked for stay of execution in I.A. No. 211 of 1931 on which the following order was passed : - ""There will be a stay

of delivery of possession. Further determination of mesne profits up to the date of judgment will continue. The stay granted is conditional on the

appellant paying the kist and the full rent of Rs. 3,250 less the kist to the respondent by the end of February each year. The first payment to be by

February, 1932."" The rent was not paid by February, 1932 and an extension was asked for on which the District Judge passed the following

order: ""In Amanatullah Mian Vs. Raghunath Prasad, and Mt. Purnama Devi Vs. Ram Prasad and Another, it is held that the Court has no

jurisdiction to extend the time fixed in a decree. That has no reference to this petition. The time was stated as the date on which it was expected

that the harvest could be disposed of. There is nothing to prevent extension of the time, and it is proper to extend it where cause is shown. The

delay will be excused as the whole amount more or less has been deposited and the stay I will be continued. No costs."" The contention before me

is that the Court had no power to extend the time. I agree that this order was not under Order 41, Rule 5(3) and that it must be considered as an

order passed u/s 151. From this it is argued that Section 148, by which the Court can grant an extension, is not applicable. Sheikh Hamidur

Rahman v. Shahanand Das AIR 1925 Pat. 153 the decision of a single Judge, is quoted in this connection. In that case an appeal had been filed by

the judgment-debtor against an order refusing to set aside a sale under Order 21, Rule 90. The Court allowed it with the following express

condition ""that the appellant do pay to the contesting opposite party respondents a sum of Rs. 50, as costs within a week, in default therein, the

appeal shall stand dismissed without reference to this Court"". There is no difficulty whatever in the decision looking to the terms of the order. But,

with respect, I am unable to agree with one of the grounds stated as follows : ""Now the doing of the act in this case, namely, paying the sum of Rs.

50 to the petitioner was not the doing of an act prescribed or allowed by the Code. In the circumstances Section 148 has no application

whatever."" The learned Judge had earlier expressed the opinion that it was ''a good and operative order''. An action taken by a Court u/s 151 is no

doubt correctly described as not one prescribed by the Code but to say that a good and operative order under this section is not one allowed by

the Code appears to me to be a contradiction in terms. If the action of the Court is permissible u/s 151, and it is not disputed that it is so, then I am

unable to understand how the Court can be said to do an act which is not allowed. I therefore cannot accede to the argument that Section 148 has

no application. Apart from this argument there is nothing to support the petitioner''s contention. As observed by the learned District Judge this is

not a case of altering the terms of the decree nor is the case like Pilcher v. Hinds (1879) 11 Ch. 905, where one act had to be done before another

could be performed. In this connection Collinson v. Jeffery (1896) 1 Ch. 644 is relied on but it is really against the Petitioner. The order there was

in default of such lodgment within two months from the date of this order the action be dismissed with costs"". Yet Kekewich, J. said : ""It appears

to me however that this action is not dead. It is comatose; it is moribund; but a final stroke is required to effect death. That final stroke has not

been delivered and therefore in my opinion the application is properly made and the order asked for may be granted"". He also pointed out that

there is another form of order available and appropriate where the Court thinks that severe terms should be imposed, namely, that on failure to do

certain acts within a specified time then ''the action do stand dismissed without further order''. In this case no such words are in the order"". That

case is very much stronger than the present where there is no sort of order that the petition do stand dismissed or that execution shall proceed in

default of payment. S.S. Balakrishna Aiyar and Another Vs. Parvathammal and Another, is a case where there was an express direction to give

security within a specified time ""otherwise the petition to stand dismissed with costs"". There is a discussion there on the subject in which the

Chancery ease already quoted is alluded to. That whole discussion is based on the categorical terms of the order and it would have been

unnecessary, if the Petitioner''s view is correct, that the order automatically terminates in such a manner as to exclude extension although nothing of

the sort appears in the order itself.

The petition is dismissed with costs.