Thandavachari and Others vs Muthuvel Pillai

Swamikkannu, J.—This is a case in which the Respondent herein has kept quiet for a continuous period of six months after a valid Order had been obtained by the Petitioner here in on 20th March 1980 for possession of the suit property which was delivered in execution and the delivery was also recorded and the execution Petition was closed. As a matter of fact, Interlocutory Application No. 441 of 1980 was filed to extend the time for payment of the amount ordered in Interlocutory Application No. 1059 of 1979 which Petition was u/s 5 of the Limitation Act. While dispensing of Interlocutory Application No. 1059 of 1979 on 21st April, 1979, the lower Court had granted some time within which the amount had to be paid. The said amount specified in that Order was not paid. But, in the meanwhile, that is on 20th March 1980, possession of the suit property was delivered in execution and delivery was recorded and execution Petition was closed. Under the circumstances, when Interlocutory Application No. 441 of 1980 had been filed to extend the time for payment of the cost ordered in Interlocutory Application No. 1059 of 1979, how the said prayer could be granted and is it not that the said Order should be revised under the provision of Section 115 of the CPC ? This is theoretical question that emanates from the learned Counsel for the Petitioner herein. This Court feels that this question has got substance; The contention that is surrounding the said rhetorical question has got valid support in P.K. Sukumaran Vs. Sulaiman Khan, . Krishan Dutt v. Mohinder Nath, AIR 1975 J.&K. 18. Is the submission made by Mr. T.K. Subba Rao, learned Counsel for the Petitioner herein.

On the other hand, the learned Counsel for the Respondent herein refers to the provision u/s 148 of the Code of Civil Procedure. which deals with enlargement of time. He relies on the decision in Periasami Asari and Another Vs. President, Iluppur Panchayat Board, Iluppur and Others,

Each case has to be decided on the facts of that particular case. The instant case, which has now reached the state of a Civil Revision Petition in this Court had a nice story behind it. Original Suit No. 330 of 1978 was the suit instituted by the Plaintiff for declaration and possession. On 22nd February 1979, an expert decree was passed in the said suit because the Defendant''s Counsel reported no instructions. On 21st April 1979, Interlocutory Application No. 1059 of 1979 was filed by the Defendant u/s 5 of the Limitation Act for condoning the delay in filing a Petition to set aside the expert decree. As a matter of fact, Interlocutory Application No. 1060 of 1979 was also filed by the Defendant to set aside the ex parte decree in the suit Original Suit No. 330 of 1978. On 1st February 1980 the Petition for condoning delay, namely Interlocutory Application No. 1059 of 1979 was ordered and a condition was imposed that a sum of Rs. 75 has to be paid by way of costs to the other side before 28th February 1980. This condition was not satisfied. Therefore, on 29th February 1980 Interlocutory Application No. 1059 of 1979 was dismissed for non compliance with the condition imposed. Interlocutory Application No. 1060 of 1979 for setting aside the expert decree was also dismissed. On 20th March 1980, possession of the suit property was delivered in execution and delivery was recorded and execution Petition was closed. From the above details which are not in dispute, it is clear that for a period of about six months, the decree-holder had been in possession of the suit property till the Order under revision was passed. How it can be ordered is a big question which had formed itself info a rhetorical question and fad emanated from the learned Counsel for the Petitioner Mr. T.K. Subba Rao.

Now, let me in fairness refer to the decisions cited by the Counsel. In P.K. Sukumaran Vs. Sulaiman Khan, . which has been relied on by the learned Counsel for the Petitioner, it was held that it was not possible to say that the time fixed under the conditional decree could be extended by the Court after the default clause had separated and that the remedy for the Petitioner could only be by way of review or appeal. In that case, the Court had passed a final Order in the suit and the Court did not retain control over the suit any further. In such cases, it was held that it could not be said that either Section 148 or 149 of the CPC could be invoked. In Krishan Dutt v. Mohinder Nath, AIR 1975 J. & K. 18 it has been held that Section 148 cannot be invoked by the Petitioner for condition of delay because on passing final Order, the proceeding had come to an end and the Court become functus officio.

In Perisami Asari v. President, Illuppur Panch. Bd, (1973) 1 M.L.J. 224 relied on by the learned Counsel for the Respondent, it has been held that the wording of Section 148 of the CPC allows extension of time even if the original period fixed has expired. It has also been held in that case that it is not necessary that the extension of time should be asked for before the expiry of the period. The Counsel for the Respondent also relied on Mahanth Ram Das v. Ganga Das (1962) 1 M.L.J. 167 and Gobardhan Singh Vs. Barsati,

It is represented by the learned Counsel for the Respondent that the Petition Interlocutory Application No. 441 of 1980 was filed on 14th March 1980, that is even prior to the possession of the suit property was ordered and delivered actually in execution which was on 20th March 1980. In other words, the learned Counsel for the Respondent submits that even about six days prior to the actual Order of possession of the suit property directed the lower Court, application Interlocutory Application No. 441 of 1980 was filed before the lower Court. This is not an excuse. (SIC) was really aggrieved by the Order granting possession made by the lower Court on 20th March 1980, the Respondent, ought to have preferred the suitable remedial measure available to him and if he had kept with respect to the same but, had now come forward with the contention that on 14th March 1980 itself the application was filed, the said contention does not support his case at all. The said contention has to be repelled under the circumstances. if the Respondent has been really aggrieved with respect to the possession that had been ordered, he has to pursue the remedial measures available to him and not agitate that point here in this Petition. There is absolutely no justification for an extension of time in the present case inasmuch as the decree-holder had taken possession of the premises in question and had been in possession for six months on the date of the pronouncement of the Order under revision merely on the ground that even about mix days prior to the Order of possession, Interlocutory Application Ho. 441 of 1980 was filed. The lower Court has ignored and has completely lost sight of the proceedings that had taken place before it on 20th March 1980. It is not as if the Court was some other Court which ordered possession. Therefore, even if both the sides bad not brought to the notice of the lower Court this aspect, the lower Court ought to have by itself, gone through the records in the case and enlightened itself before making the Order which is under revision. This is a complete dereliction of duty which the lower Court had indulged in by extending the time for payment of the cost. When once an order has been made by the lower Court thinks that it is now open for it, after having (SIC)dered on 20th March 1980 possession of the suit property, and (SIC possession had been taken by the Petitioner herein and when had been in continuous possession for six months, to coolly Order the Petition for extension of time. What is to happen with respect to that person who has taken possession, namely, the revision Petitioner herein ?

All these aspects have been completely lost sight of the lower Court and therefore, the Order extending time for payment of Rs. 75 imposed as a condition in Interlocutory Application No. 1059 of 1979 is certainly irregular illegal and becomes revisable. Hence the civil revision Petition is allowed with costs.