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Ahmad HusaIn Khan Vs. Hardial - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All142a; 90Ind.Cas.243
AppellantAhmad HusaIn Khan
RespondentHardial
Excerpt:
- - on the 28th july the defendant having failed to deposit the money applied for ten day's further time, which was refused. it appears to us that because the learned subordinate judge in the exercise of his discretion considered that the defendant was not entitled to an extension of time for payment of the money, this does not amount either to a failure to exercise jurisdiction against which a revision can lie......the exercise of his discretion considered that the defendant was not entitled to an extension of time for payment of the money, this does not amount either to a failure to exercise jurisdiction against which a revision can lie. the applicant has drawn our attention to a decision in jagarnath sahi v. kamta prasad upadhya air 1914 all 55, in which the opinion was expressed that a conditional order was not a proper form in which to pass the order, and that an order should first be made directing payment of the money by a certain time and then a separate order passed restoring or declining to restore the suit according as the money had been paid or not. the real question in that case was as to the order from which an appeal lay, and it was held that the final order dismissing the suit or.....
Judgment:

1. This is an application in revision under the following circumstances: A suit was decreed ex parte against the applicant on 29th April 1924. On the 26th July the Subordinate Judge set aside the ex parte decree on condition of the defendant paying the plaintiff Rs. 40 as costs by the 28th July. The defendant did not at the time make any objection that the time allowed was too short. On the 28th July the defendant having failed to deposit the money applied for ten day's further time, which was refused. An appeal from this order was dismissed by the learned District Judge. It appears to us that because the learned Subordinate Judge in the exercise of his discretion considered that the defendant was not entitled to an extension of time for payment of the money, this does not amount either to a failure to exercise jurisdiction against which a revision can lie. The applicant has drawn our attention to a decision in Jagarnath Sahi v. Kamta Prasad Upadhya AIR 1914 All 55, in which the opinion was expressed that a conditional order was not a proper form in which to pass the order, and that an order should first be made directing payment of the money by a certain time and then a separate order passed restoring or declining to restore the suit according as the money had been paid or not. The real question in that case was as to the order from which an appeal lay, and it was held that the final order dismissing the suit or refusing to restore the suit was the one from which an appeal could be filed. In a later case, Nand Lal v. Kishori AIR 1914 All 336, to which one of the same learned Judges was a party, some doubt appears to have been felt as to the correctness of the earlier ruling. However that may be, to prevent any misapprehension we wish to lay down definitely 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 is not an illegal order, but on the contrary, is an order contemplated by Order 9, Rule 13, Civil P.C. This application has no force, and we dismiss it with costs including in this Court fees on the higher scale.


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