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Thamanampudi Kanthamma Vs. Thamanampudi Peda Veerareddy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberC.M.P. No. 4552 of 1958
Judge
Reported inAIR1959AP550
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151
AppellantThamanampudi Kanthamma
RespondentThamanampudi Peda Veerareddy
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateN.C.V. Ramanujachari, Adv.
Excerpt:
.....of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 53 mad lj 494: (air 1928 mad 154), clearly laid down that the court has no power to extend the time when the order works itself out. invoking the inherent powers of the court and also not as a case of a mere mistake by the party which led to his failure to comply with- the conditions. this decision clearly indicates that limitations circumscribing the power available under section 148 do not govern those of the court under section 151, c......learned counsel for the respondent, opposes the application on the ground that as the order of the stay application has the clause 'in case of default, the stay petition in cmp no. 6644 of 1956 will stand dismissed with costs', there is no power in the court to extend thea time or enlarge the period for payment. he calls in aid the decision reported in nasar sahob v. nabi saheb, 1956 andh lt 489; (air 1957 andh-pra 780), where in an application to set aside the ex parte decree, an order was made that the costs awarded by the decree should be deposited by 2-00 p.m., on a particular day and that in default the petition will stand dismissed. but the amount was not deposited before that time so fixed. the applications for extending time and for reviewing the order by the defaulter were.....
Judgment:

Munikannaiah, J.

1. This application is filed under Section 151 of the Code of Civil Procedure, to condone the delay in depositing the amount of Rs. 200/- towards profits of the year 1958 as per the order of this Court dated 26-2-1957.

2. The petitioner, who is the appellant in Section A. No. 709 of 1956, filed C.M.P. No. 6644 of 1956 for stay of execution of the decree in O. Section No. 77 of 11950 on the file of the Subordinate Judge's Court, Eluru, and an order granting stay had been made whereby the petitioner was directed to deposit within two months of that order certain sums and as regards future mesne profits, the petitioner was further directed to deposit Rs. 200/- on 15th of March every year commencing from 15-3-58. The petitioner avers that as the copy of the order of this Court in the said application was left in the office of her counsel in the lower Court, she was ignorant of the dale stipulated in the order, but deposited the said sum of Rs. 200/- only on 24-4-58, i.e., immediately after she came to know that deposit is due. The petitioner pleads that the delay in depositing the amount is not intentional but was on account of her ignorance about the correct date.

3. Sri Ramanujachari, the learned counsel for the respondent, opposes the application on the ground that as the order of the stay application has the clause 'In case of default, the stay petition in CMP No. 6644 of 1956 will stand dismissed with costs', there is no power in the Court to extend thea time or enlarge the period for payment. He calls in aid the decision reported in Nasar Sahob v. Nabi Saheb, 1956 Andh LT 489; (AIR 1957 Andh-Pra 780), where in an application to set aside the ex parte decree, an order was made that the costs awarded by the decree should be deposited by 2-00 p.m., on a particular day and that in default the petition will stand dismissed. But the amount was not deposited before that time so fixed. The applications for extending time and for reviewing the order by the defaulter were dismissed, The learned Chief Justice delivering the judgment of the Bench held that the authority in Balakrishma Aiyar v. Par-vathammal. 53 Mad LJ 494: (AIR 1928 Mad 154), clearly laid down that the Court has no power to extend the time when the order works itself out.

4. This is the settled position in regard to the power of Courts to extend time whenever conditional orders contemplate to put an end to the application automatically and when the defaulting party invokes the powers under Section 148. C. P. C. In Sreepathi Balaiah v. Darsi Rarnayya, (1941) 1 Mad LJ 638: (AIR 1941 Mad 706), Wadsworth J. relying upon 53 Mad LT 494: (AIR 1923 Mad 154), has observed at page 640 (of Mad LJ): (at p. 706 of AIR):

'When a Court has granted time within which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is in my opinion no power under Section 148 of the Code of Civil Procedure after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made; moreover I should not be inclined to refuse to interfere in revision with an order passed under Section 148 in such circumstances without jurisdiction, merely on the ground of hardship to the person adversely affected.'

But the learned Judge distinguished the case before him as one under Section 151, C. P. C. invoking the inherent powers of the Court and also not as a case of a mere mistake by the party which led to his failure to comply with- the conditions. There, Wads-worth J., came to the conclusion that the basic mistake which led to the trouble was the mistake of the Court officer. The mistake consisted in the Court officer incorporating the result of the judgment into the rough diary maintained by the Court, whereby instead of a sum of Rs, 15/- a sum of Rs. 12/- wag inscribed. Wadsworth J., however, upheld the order of the District Judge on the ground that there was a power under Section 151, C. P. C. to do that which was necessary for the ends of justice. This decision clearly indicates that limitations circumscribing the power available under Section 148 do not govern those of the Court under Section 151, C. P. C. In that decision what was actually upheld was the action of the District Judge to extend the time for payment of the balance of Rs. 3/-.

5. In passing it is necessary also to observe that the facts of the cases dealt with in 1956 Andh LT 489: (AIR 1957 Andh Pra 780) and 53 Mad LJ 494: (AIR 1928 Mad 154), relate specifically to orders for payment of certain sum or sums on a particular day and do not concern with orders with regard to payment of instalments for the future. Though this aspect of the matter may be, to some extent, of importance in ascertaining the amplitude of tho authority of those two decisions, it is not necessary for me to deal with that matter as the instant application with which I am concerned is one under Section 151, C. P. C, for condoning the delay in depositing the first future payment towards the mesne profits.

6. I consider that having regard to the opinion of Wadsworth J, the correct position is that the powers under Section 151, C. P. C. to do what is necessary for the ends of justice are not taken away especially in the matter of condoning the delay when indeed a payment has been made and there are grounds to come to the conclusion that the party who prays for the condonation had not been wilful in causing the delay and also when the other party has already derived substantial benefit and would not suffer materially. In all such cases, the ends of justice could be taken to have been met if there is substantial though not strict compliance with the order on the stay application.

7. In this view, I hold that the delay in payment by the petitioner of the instalment amount of Rs. 200/- due on 15-3-1958 but paid on 24-4-1953 could be condoned; I make an order accordingly.


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