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Nanak Chand Vs. Goswami Preetam Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1253 of 1970
Judge
Reported inAIR1972All166
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantNanak Chand
RespondentGoswami Preetam Lal
Appellant AdvocateN.A. Kazmi, Adv.
Respondent AdvocateA.D. Prabhakar, Adv.
DispositionRevision dismissed
Excerpt:
civil - non fulfillment of condition in an order - order 9 and rule 13 of code of civil procedure, 1908 - suit for ejectment - decree passed - condition on tenant to make certain payment was made - payment not made in full - condition not fulfilled - application stands rejected. - .....make the necessary payment of the amount but moved an application on 29-5-1969 praying that the time for payment should be extended by 31-5-1969. the applicant made another application in which he stated that he was depositing rs. 394.15 and prayed for two months' time for depositing the balance of rs. 104.50 p. both the aforesaid applications were dismissed by the trial court on 13-9-1969. the trial court said that it had no jurisdiction to grant further extension of time. the opposite party raised an objection before the court below that the appeal preferred before it was barred by limitation because the time for preferring the appeal ran from 17-5-1969 when the trial court had passed the aforesaid conditional order which was a self contained order.2. it was contended that since the.....
Judgment:
ORDER

S.N. Katju, J.

1. I have heard learned counsel for the parties. There is no force in this application. The suit for ejectment and arrears of rent was decreed ex parte against the defendant-applicant on 11-11-1968. On 25-2-1969, an application under Order 9, Rule 13 Civil Procedure Code was filed by the applicant for setting aside the ex parte decree. The trial court passed an order, the operative portion of which is as follows:--

'Allowed on payment of Rs. 10/- as costs subject to the condition that the applicant should deposit Rs. 394.15 as rent of the period from 18-8-1965 to 12-8-1968 and alleged monthly damages of Rs. 11/- commencing from 17-8-1968 upto date by 30-5-1969 failing which the application shall stand automatically rejected.'

The applicant did not make the necessary payment of the amount but moved an application on 29-5-1969 praying that the time for payment should be extended by 31-5-1969. The applicant made another application in which he stated that he was depositing Rs. 394.15 and prayed for two months' time for depositing the balance of Rs. 104.50 p. Both the aforesaid applications were dismissed by the trial court on 13-9-1969. The trial court said that it had no jurisdiction to grant further extension of time. The opposite party raised an objection before the court below that the appeal preferred before it was barred by limitation because the time for preferring the appeal ran from 17-5-1969 when the trial court had passed the aforesaid conditional order which was a self contained order.

2. It was contended that since the applicant had committed default, the application for setting aside the ex parte decree stood dismissed by the aforesaid order dated 17-5-1969 and the appeal filed before the court below was barred by limitation. The court below accepted the contention of the opposite party. It further held that the trial court was right in passing the aforesaid conditional order dated 17-5-1969 and the application for setting aside the ex parte decree stood dismissed in view of the default of the applicant by that order itself. In Gaya Din v. Lalta Prasad : AIR1936All477 a Division Bench of this Court approved of an earlier decision of this court in the case of Ahmad Hussain v. Har Dayal : AIR1926All142 in which it was held that:--

'an order restoring a case dismissed for default on condition of the payment of a reasonable amount of costs to the opposite party within a time fixed by the order was not an illegal order but on the contrary was an order contemplated by Order 9, Rule 13 of the Code of Civil Procedure.'

The Division Bench observed:

'The order being legal and valid the next question is what was the effect of the order on the expiry of the time fixed for the payment of the costs. As already stated that order was that in case of default of payment of the costs upto the 27th October, 1934, the application stood as dismissed and the Court no longer remained seized of the application.'

In view of the aforesaid observation, I have no hesitation in holding that the decision of the court below is correct.

3. The application in revision fails and is dismissed. Considering the circumstances of the case, the parties will bear their own costs in this court.


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