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Buta Singh Shankar Singh Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 419 of 1961
Judge
Reported inAIR1962MP205
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148 - Order 47, Rule 1
AppellantButa Singh Shankar Singh
RespondentState of Madhya Pradesh
Appellant AdvocateB.S. Bakshi, Adv.
Respondent AdvocateH.L. Khaskalam, Govt. Adv.
DispositionRevision dismissed
Cases ReferredLachmi Narain v. Balmakund
Excerpt:
- - but, the order sheet clearly states that the plaintiff's counsel promised to pay the costs by the next hearing. on 10th february he first passed the order saying that the amount must be paid within that day and then finally allowed a day, each time repeating that on failure of deposit the suit will stand dismissed. once the period has expired and the order of dismissal has operated, then, clearly it can be said that whatever may be provided in section 148, civil procedure code, after the suit has actually been dismissed the court has no jurisdiction to alter the order of dismissal except by way of formal review. was a case of a compromise decree, where the plaintiff's claim was to stand decreed upon the defendant's failure to pay a certain amount by a fixed date. for example, it.....orderp.k. tare, j.1. this revision under section 115 of the civil procedure code is by the plaintiff against the order dated 7-7-1961, passed by shri p.s. rana civil judge class ii, sidhi in civil suit no. 5-b of 1961, refusing to restore to file the suit.2. the petitioner filed a suit for restraining the respondent from recovering an amount of rs. 2000/- regarding a forest contract. the petitioner alleged that something was due to him. at this stage, it is not necessary to consider the defence.3. the petitioner's suit came to be dismissed in default. he applied for restoration of the suit to file, but the trial court refused to restore it. thereafter, the petitioner filed an appeal. the appellate court, by order, dated 27-4-1961 restored the suit to file upon certain conditions. the.....
Judgment:
ORDER

P.K. Tare, J.

1. This revision under Section 115 of the Civil Procedure Code is by the plaintiff against the order dated 7-7-1961, passed by Shri P.S. Rana Civil Judge Class II, Sidhi in Civil Suit No. 5-B of 1961, refusing to restore to file the suit.

2. The petitioner filed a suit for restraining the respondent from recovering an amount of Rs. 2000/- regarding a forest contract. The petitioner alleged that something was due to him. At this stage, it is not necessary to consider the defence.

3. The petitioner's suit came to be dismissed in default. He applied for restoration of the suit to file, but the trial Court refused to restore it. Thereafter, the petitioner filed an appeal. The appellate Court, by order, dated 27-4-1961 restored the suit to file upon certain conditions. The appellate Court imposed a condition precedent to the restoration of the suit by directing that the plaintiff should pay Rs. 30/- as costs to the Government Pleader or should deposit the same within a week in the trial Court for payment to the Government Pleader. If that was done, the suit will be deemed to have been restored; and if the amount was not paid within the time, the suit will be deemed not to have been restored.

4. The said amount was not, however, deposited within one week from 27-4-1961. Thereafter, the case was taken up by the trial Court On 6-5-1961, when the following order sheet was recorded:

^^i{kdkj dh rjQ ls odhyku mifLFkrA gjtkukvnk ugha fd;k x;kA odhy oknh dk dguk gS fd oknh dks bkYyk Hkst fn;kA rk- ijgjtkuk vnk dj fn;k tk;sxkA i{kdkj vius vius xokgku rk- ij is'k djsA ntZ jft-nhokuh gks**

5. Thereafter, the petitioner offered the costs on the next hearing, that is, 7-7-1961; when the Government Pleader refused to accept the same on the ground that a valuable right had accrued in favour of the defendants to treat the suit as dismissed, as the operation of the appellate order, dated, 27-4-1961 was automatic. The learned Judge of the trial Court upheld the contention of the defendants and further held that in view ot the automatic order of the appellate Court the trial Court had no jurisdiction to extend time. Therefore, the question arises if the Court once passes an order, which is operative automatically without reference to any further order to be passed by the Court, has the Court jurisdiction to extend time under Section 148 of the Civil Procedure Code.

6. The learned counsel for the petitioner urged that the petitioner was misled by the order of the trial Court, dated, 6-5-1961, which permitted the payment of the costs on the next hearing, I have already reproduced the said order sheet above. There is nothing to indicate that the Court granted further time to the plaintiff for payment of the costs. Had that been the case, it could have been argued that the plaintiff was misled by the wrong action of the Count which was without jurisdiction. But, the order sheet clearly states that the plaintiff's counsel promised to pay the costs by the next hearing. The Court, however, did not pass any order.

7. As regards the order of the appellate Court, dated 27-4-1961, the plaintiff was required to pay the costs within one week. As such, 4-5-1961 was the last day by which payment ought to have been made or the amount should have been deposited in Court. But nothing of the kind was done. The hearing of 6-5-1961 in the trial Court was itself beyond the period of one week. As such, any payment made on 6-5-1961 also would be beyond the time granted by the appellate order, dated, 27-4-1961. I am unable to accept the contention of the learned counsel for the petitioner that the petitioner was misled by the order of the Court, dated, 6-5-1961. The petitioner stands to blame for not complying with the appellate order, dated 27-1-1961.

8. The further question is whether Section 148 of the Civil Procedure Code can be availed or in respect of the appellate order, dated 27-4-1961.There is no doubt that the operation of the saidorder was automatic. If the payment or the deposit was made, the suit was deemed to havebeen restored; and if not made, the suit wasdeemed to have bean dismissed. There was nothingfurther to be clone by the Court. Consequently, therestoration or the dismissal of the suit dependedsolely on the fact of payment or deposit. In suchcases, the Court will have no jurisdiction to extend time under Section 118 of the Civil Procedure Code.

9. Section 148 of the Civil Procedure Code is as under :--

'Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in it's discretion, from time to time, enlarge such period., even though the period originally fixed or granted may have expired.'

10. The learned counsel for the petitioner invited attention to the Division Bench case or Raghunandan Sahay v. Ram Sunder, ILR 4 Pat 190: (AIR 1925 Pat 299) and urged that by accepting deficit court-fees after the time fixeds the Court would be impliedly extending time. It is true that extension of time need not in all cases be specific. Under certain circumstances, there can be implied extension of time if the Court by accepting the deposit beyond time, impliedly condones the delay.

11. To the same effect was the view expressed in Basavayya v. Venkatappayya, AIR 1926 Mad 676.

12. In Harjimal v. Firm Shantilal Sakalchand 30 Nag LR 258 : (AIR 1934 Nag 109), Bose, A.J.C. (as he then was) made the following observations:

'There can no longer be any doubt that a Court has power to extend time for the doing of any act prescribed or allowed by the Code, even though the period originally fixed or granted may have expired : Section 148 of the Civil Procedure Code, 1908. It is true this does not apply when the period has been fixed by a decree: Sajjadi Begam v. Dilawar Hussain, ILR 40 All 579: (AIR 19.18 All 98), Komalsingh v. Jagannath, 15 Nag LR 39: (AIR 1918 Nag 66) and Ambadas v. Laxman, 19 Nag LR 8: (AIR 1923 Nag 210). But when the application for extension is made before the decree, the Court is bound to consider it and exercise the jurisdiction conferred on it by Section 148, one way or the other. The Code allows plaints which have been insufficiently stamped to be rectified under Order VII, Rule 11. Therefore when a time has been fixed under that rule, the Court has jurisdiction to extend it under Section 148, in proper cases; and when it fails to consider an application through a mistake of its own, it has inherent jurisdiction to rectify its mistake, even though it means the reopening of a decree. For Courts exist to administer justice, and rules which have been framed for the attainment of that end should not be used to frustrate it. They are necessary to prevent confusion and chaos, and must ordinarily be applied with strictness to ensure diligence in the conduct of affairs which affect the destinies of others. But that predicates diligence on the part of the Court and its officials too, and when they have not been diligent justice requires that no party should be allowed to suffer because of their negligence.'

Therefore, there can be no doubt that the Court can always extend time in respect of matters provided by the Code, even though the time for doing the same may have expired. Bose, A.J.C. also deprecated the practice of passing of such automatic orders; but the exact question is what happens when an automatic order is actually passed. In the case before Bose, A. J. C. time had been fixed by the decree in the following terms:

'Plaintiffs should pay deficient Court-fees on Rs. 470-8-0 within 15 days or suit shall stand dismissed.'

In that case the application for extension of time had been made before the expiry of 15 days and the trial Judge treated the suit as dismissed without passing any order on the application. It was under those circumstances that the learned Judge made the observations which have been mentioned above. But, in my opinion, the observations cannot be interpreted to mean that the Court has power to extend time even though the automatic order has started to become operative. The application for extension must be made before the expiry of time fixed by the order; at least in respect of automatic orders. Where the order be not automatically operative, the Court has always the power to extend time even beyond the time fixed by the order.

13. The case of Makund Lal v. Gopal Das, AIR 1950 All 536 decided by a Division Bench consisting of Mustaq Ahmad and Desai JJ. was a case similar to the one before Bose A.J.C. where time was fixed by the decree for payment of the deficit court-fees in a suit for partition and separate possession. The learned Judges referring to the case of 30 Nag LR 258: (AIR 1934 Nag 109) (supra) approved the observations of Bose A.J.C. to the effect that it is undesirable to pass such orders. If they are passed, the Court should not draw up a decree till the expiry of the period fixed by the decree and then should pass an appropriate order dismissing the suit if no compliance is made within time. Even according to the observations of the learned Judges of this Division Bench, time can be extended before the period prescribed. But, I am unable to read the observations of the learned Judges to mean that time can be extended in a case of an automatic order, although the same has started to be operative on account of non-compliance.

14. In Bishamchand v. Kishanlal Sheosingh, ILR (1939) Nag 478: (AIR 1939 Nag 103), Niyogi J. held that Section 148 of the Civil Procedure Code would be applicable to an order of discharge to be passed under Section 43(1) of the Provincial Insolvency Act read with Section 27 Sub-sections (2) and (5) of the said Act, However, there can be no doubt that as held by Niyogi J., Section 148 of the Civil Procedure Code can be applied to all other proceedings under the different enactments where the provisions of the Civil Procedure Code are made applicable by the special enactment itself.

15. Roxburgh J. in Bajranglal v. Smt. Solaki, AIR 1950 Cal 564 had to consider the question of extension of time in conditional orders passed by the Court regarding payment of costs. The order in question in that case was in the following terms:

'That the miscellaneous case be allowed on contest provisionally. The petitioners to pay Rs. 35/- to the opposite party No. 1 by 10th February 1950 upon which the suit will be restored to file. In default the miscellaneous case shall stand dismissed.'

At this stage, I might note that the order passed in the said case was identical with the appellate order, dated 27-4-1961 passed in the present case. The learned Judge made the following observations:

'In my opinion, however, it is clear from the order of 30th January that it was in part of a provisional nature as the learned Munsiff himself expressed it, I do not think it can be said that he had entirely by his order divested himself of the power given under Section 148, Civil Procedure Code to alter the form of his provisional order, that is to say, to extend the time. On 10th February he first passed the order saying that the amount must be paid within that day and then finally allowed a day, each time repeating that on failure of deposit the suit will stand dismissed.

Once the period has expired and the order of dismissal has operated, then, clearly it can be said that whatever may be provided in Section 148, Civil Procedure Code, after the suit has actually been dismissed the Court has no jurisdiction to alter the order of dismissal except by way of formal review. With great respect, I think it is going a little too far to say that orders in the form of the order passed by the Munsiff here on 30th January are complete final orders. The orders are, as it were, in two parts with a condition and, in my opinion, so long as the actual order of dismissal has not operated, the Court has still seisin of the case and has still jurisdiction to make use of the powers given under Section 148, to extend the time. No case has been cited before me in which it has been held that an application for extension of time made within time cannot be allowed.'

16. The learned counsel for the petitioner placed reliance on the said observations of Roxburgh J. and urged that in respect of such conditional orders time could always be extended. In my opinion, Roxburgh J. never went to that length. What he laid down was that before the expiry of the time, the Court passing a conditional order could always extend it. The learned Judge expressed the opinion that once the order of dismissal operated, nothing could be done in the matter. Therefore, I am unable to accept the contention that the trial Court in the present case had the jurisdiction to extend time, even though the order of the appellate Court, dated 27-4-1961 became operative so as to result in the dismissal of the restoration application.

17. The case of Jyotish Chandra v. Rukmini, AIR 1959 Cal 35 decided by a Division Bench of the Calcutta High Court laid down that where time was granted for filing of the written statement on the condition of payment of costs, time could always be expended under Section 148 of the Civil, procedure Code. I am in entire agreement with that view. But, the question arises whether time can be extended in case of orders the operation of which is automatic without any further reference to the Court and the operation of which depends upon the doing or otherwise of a thing by a party prescribed by the order.

18. In Venkata Rami Reddy v. Adinarayana Reddy, AIR 1960 Andh Pra 271, a Division Bench held that where in a decree for specific performance of the contract of sale, the appellate Court had granted a fresh period of 3 months to the successful plaintiff to deposit the balance of the purchase money from the date of its judgment, the trial Court still had the jurisdiction to extend time under Section 148 of the Civil Procedure Code. This case also relates to the question of jurisdiction of the trial Court in a case where time is fixed by the appellate Court. Even that proposition laid down by the learned Judges does not solve the present problem, whether the Court once having passed an automatic order, which has become operative) can the Court extend time after the order had become operative?

19. In Tukaram v. Rambhau, ILR (1955) Nag 267 a Division Bench consisting of Hidayatullah Ag. C. J. (as he then was) and Rao J. held that in an appeal against a pre-emption decree the appellate Court has the power to fix a fresh period for deposit of the pre-emption price under Section 148 of the Civil procedure Code, although the appellate Court is not bound to extend time. So far as the deposit of pre-emption amount is concerned, it is specifically governed by Order 20 Rule 14 of the Civil Procedure Code; and there can be no doubt that Section 148 can be invoked at the appellate stage. But, it is pertinent to note that this case also does not answer the question that arises in the present case.

20. In Ajambersingh v. Thandaram, Misc. Appeal No. 260 of 1941, D/-28-8-1946: 1947 Nag LJ (NC) No. 71, Pollock J. held that where time was fixed for payment of the instalments by the instalment decree the Court had no power to extend time under Section 148, Civil Procedure Code. However, we need not consider that case as in respect of pre-emption decrees there is a Division Bench case of this High Court in ILR (1955) Nag 267 (supra). The case of a decree fixing time would stand on a different footing from the case of an order, which is qualified by a condition precedent and the operation of which is automatic and dependent on the doing or otherwise of an act by a party.

21. In Gunwantrao v. Apparao, Civil Revn. No. 232 of 1949, D/-23-1-1950: 1950 Nag LJ (NC) No. 216, Mudholkar J. (as he then was) held that where the appellate Court had fixed the time for payment of the deficit court-fees which was made payable before the trial Court, the trial court had the jurisdiction to extend time under Section 149 of the Civil Procedure Code. The learned Judge relied on the earlier case of Bulakichand v. Amirali, 21 Nag LR 111: (AIR 1926 Nag 44) decided by Kinkhede A. J. C., as also the cases of the other High Courts in holding that although the time might have been fixed by the appellate Court, the trial Court had the jurisdiction, if the doing of the act was directed to be done before the trial Court. However, the learned Judge distinguished the cases where a condition precedent might be attached to the doing of a certain thing. From the observations of the learned Judge, it is clear that the principle indicated by him will not be applicable to orders, which are qualified by a: condition precedent.

22. In R. V. S. Mani v. Balkrishna, Civil Revn. No. 495 of 1953, D/- 15-10-1953: 1954 Nag LJ (NC) No. 60, Choudhuri J. held that where time for payment was fixed by the compromise decree, the Court had no power to grant instalments under Order 20 Rule 11, Civil Procedure Code or to extend time for payment. The learned Judge relied on the case of Bhagirath v. Madhorao, ILR (1948) Nag 174: (AIR 1948 Nag 388) decided by Padhye J., which was also a case of a compromise decree, wherein the learned Judge held that in a case of a compromise decree the executing Court could not go behind the decree and if in case of default a larger sum was made payable, the Court may have to consider whether it would amount to a penalty, or a mere concession given to a judgment-debtor Padhye J. opined that the Court could not go behind a compromise decree, except when it found that there was a term which was against the law and which offended against public policy. However, on the facts of the case, the learned Judge held that the term about a larger sum being made payable in the event of a default was not a penalty, but a mere concession.

23. The case of Daulat v. Ganpat, Civil Revn. No. 285 of 53 D/-23-7-1954: 1955 Nag LJ (NC) No. 360 decided by Mudholkar J. (as ho then was) was a case of a pre-emption decree, where the learned Judge held that the deposit being short by one rupee the Court could not extend time under Section 148 of the Civil Procedure Code. However, the learned Judge, upon the fact, established, found that the decree mentioned a wrong sum, while the deposit made covered the actual amount due as per the judgment. Therefore, the learned Judge opined that the Court could take the correct amount into consideration and decide whether the condition precedent was operative regarding dismissal of a suit, or the party concerned was entitled to a decree for pre-emption.

24. The case of Kashiram v. Ganpat, ILR (1956) Nag 641: (AIR 1957 Nag 86), decided by a Division Bench consisting of Rao and Tambe JJ. was a case of a compromise decree, where the plaintiff's claim was to stand decreed upon the defendant's failure to pay a certain amount by a fixed date. This was certainly a case of an Automatic order. In the event of a deposit, the plaintiff's suit was to stand dismissed. However, the question involved in the present case did not arise for consideration, as the defendant in that case was prevented from making the deposit on, account of a fraud committed by the plaintiff. The question was whether non-compliance by the defendant was on account of a fraud committed by the plaintiff and whether under those circumstances the defendant was entitled to an extension of the time, There can be no doubt that where a party is prevented from doing a thing on account of the fraud of the opposite party, the party, on whom the fraud is played, would be entitled to the rights as per the conditional orders and the Court will have the power to do everything in order to do a just thing by ignoring the penalty that may arise on account of the fraudulent action.

25. However, all these, cases do not exactly solve the question involved in the present case. The exact question arose in the case of Sheobaransingh v. Moolchand, Misc. Appeal No. 8 of 1944, D/- 18-10-1945: 1946 Nag LJ (NC) No. 139 before Bose, J. (as he then was) where the learned Judge held that where time for doing of an act was not prescribed or allowed by the Court, the Court could not extend time under Section 148, Civil Procedure Code. However, where the section was applicable, the learned Judge laid down that the discretion must be exercised judicially. The learned Judge further observed that negligence or disobedience on the part of a party would disentitle it to enlargement of time tinder Section 148 of the Civil Procedure Code. In that case the suit was dismissed as barred by time. An application for review on the ground of discovery of new and important master which saved limitation, was filed, with a prayer to allow an amendment of the plaint. The review application was allowed subject to payment of Rs. 10/- to the opposite party within 2 days as a condition precedent. The plaintiff did not comply with the condition precedent but deposited the amount a month and a half later without explaining the delay. Eventually the Court dismissed the suit on the ground that the payment was tendered beyond the time prescribed by the automatic order. The first appellate Court, however, reversed the order ot the trial Court and extended time under Section 148 of the Civil Procedure Code. Bose J. reversing the order of the first appellate Court and restoring that of the trial Court held that Section 148 of the Civil Procedure Code did not apply, as the section was limited to acts prescribed or allowed by the Code. The learned Judge also held that after the Court passed an order allowing the review application subject to a condition the Court became functus officio in the master of granting the extension of the time. The trial Court could only give relief by reviewing its order under the inherent powers under Section 151 of the Civil Procedure Code.

26. This ease decided by Bose J. and the case of AIR 1950 Cal 564 (supra) decided by Roxburgh J. are the most appropriate cases on the point. Therefore, I propose to rely on these two cases in holding that the Court had no jurisdiction to extend time under Section 148 of the Civil Procedure Code after the automatic order became operative. I wish to deduce certain propositions on the point from these two cases as indicated below.

27. Of course, I am in agreement with the view of Bose A.J.C. that as far as possible such orders, which might have a drastic effect, should not be passed ordinarily; and should be avoided as far as possible. But, further I have no doubt that if once they are passed and they have begun to operate automatically on account of a default of a party, the trial Court has no jurisdiction to extend time after the order has begun to operate. The Court passing the order certainly will have jurisdiction to alter the order or to extend time before the order has begun to operate. After the expiry of the time, the appellate Court could, at the most, review the automatic order, if moved in that behalf. But otherwise, neither the appellate Court, nor the trial Court had any jurisdiction to expend time after 4-5-1961. Therefore the refusal of the trial Court to extend time was proper as a vested right had accrued in favour of the defendants; and they could insist on the suit being treated as dismissed by virtue of the appellate order, dated 27-4-1961, which became operative automatically upon non-payment or non-deposit of the amount of costs on or before 4-5-1961.

28. In Krishnaswamy Iyer v. Ouseph Mathai, AIR 1961 Kerala 110, Govinda Menon, J. has held that where an automatic order is passed by the Court allowing amendment of written statement subject to payment of costs by a certain date and in the event of default the amendment application would stand dismissed, the Court has power to extend time till the expiry of the time prescribed. Thereafter, the Court has no jurisdiction to extend time.

29. The case of L.P. Jain v. Nandakumar R. Taliwalla, AIR 1961 Bom 254 decided by Shah J. (as he then was) was a case of setting aside an ex parte decree upon certain conditions. The learned Judge held that once the Court passed an order, the operation of which was automatic, the court would become functus officio immediately the order is passed. Thereafter, the Court has no jurisdiction to extend time under Section 148 of the Civil Procedure Code. The consequences as prescribed by the automatic order must follow in due course.

30. With due respect to Shah, J. (as he then was) I find that the view expressed by the learned Judge in the said case is contrary to the pronouncement of their Lordships of the Supreme Court in Ram Das v. Ganga Das, AIR 1961 SC 882, where a peremptory order had been passed for payment of deficit court-fees. There wag no compliance with the direction of the peremptory order, but an application for extension of time was made before the expiry of the time fixed. The High Court had expressed the opinion that the time could not be extended. Reversing the decision of the High Court, their Lordships laid down the following proposition:

'The case is an unfortunate and unusual one. The application for extension of time was made before the time fixed by the High Court for payment of deficit court-fee had actually run out. That application appears not to have been considered at all, in view of the peremptory order which had been passed earlier by the Division Bench hearings the appeal, mainly because on. the date of the hearing of the petition for extension of time, the period had expired. The short question is whether the High Court, in the circumstances of the case, was powerless to enlarge the time, even though it had peremptorily fixed the period for payment. If the Court had considered the application and rejected on merits, other considerations might have arisen; but the High Court in the order quoted went by the letter of the original order under which time for payment had been fixed. Section 148 of the Code, in terms, allows extension of time, even if the original period fixed has expired, and Section 149 is equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. That the application was filed in the vacation when a Division Bench was not sitting should have been considered in dealing with it even on July 13, 1954, when it was actually heard. The order, though passed after the expiry of the time iixed by the original judgment, would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal with events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in the time but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Medes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed. We need cite only one such case, and that is Lachmi Narain v. Balmakund, ILR 4 Pat 61: (AIR 1924 PC 198). No doubt, as observed by Lord Phillimore, we do not wish to place an impediment in the way of Courts in enforcing prompt Obedience and avoidance of delay, any more than did the Privy Council. But we are of opinion that in this case the Court could have exercised its powers first on July 13, 1954, when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code of Civil Procedure were filed. If the High. Court had felt disposed to take action on any of these occasions, Sections 148 and 149 would have clothed them with ample: power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come.'

31. In the case before their Lordships of the Supreme Court, the defaulting party had actually filed an application for extension of time before the expiry of the time prescribed. That question is concluded by the pronouncement of their Lordships of the Supreme Court. However the question whether time can be extended after the expiry of the prescribed time where no application for extension is made before the prescribed time has elapsed and a vested right accrued in favour of the opposite party was not for consideration before their Lordships. So far as that aspect is concerned, the unanimous view of all High Courts, including this High Court, has been that once the prescribed time elapses and a vested right accrues in favour of the other party, the Court has no jurisdiction to extend time so as to affect that vested right.

32. From the said cases, it is clear that the proposition to be evolved is that where orders fixing time are passed either in pursuance, of the provisions of the Civil Procedure Code or fixed by the decree, the Court has always the power under Section 148, Civil Procedure Code to extend time, even when the time fixed has expired. But, so far as automatic orders are concerned, the Court has no jurisdiction to extend time after the order has started to be operative. At any time before the order has started to be operative, the Court has the power to extend time even in respect of such automatic orders. After the expiry of the time, the Court passing the automatic order alone has the jurisdiction to lessen the rigour by reviewing its own order, provided the matter is covered by Order 47 Rule 1, Civil Procedure Code. The Court may also have inherent powers under Section 151, Civil Procedure Code, as suggested by Bose J. in Misc. Appeal No. 8 of 1944, D/- 18-10-1945: 1,1946 Nag LJ (NC) No. 139 (supra). Therefore, the only remedy of the petitioner would be to approach the first appellate Court, as neither the trial Court, nor this Court has jurisdiction to extend time under Section 148, Civil Procedure Code.

33. Under the circumstances, I am of opinion that the conclusion of the trial Judge refusing to extend time was correct on the premises that he had no jurisdiction to extend time after the automatic order became operative, as a vested right had accrued in favour of the defendants, who could insist on the suit being treated as dismissed on account of non-compliance by the plaintiff and also due to the failure of the plaintiff to seek extension of time before the expiry of the period of 7 days. As a result, this revision fails and is dismissed. Of course, this is a hard case, but hard cases do not make good law. The Court is required to administer the law, as it is. However, under the circumstances, I am of opinion that the petitioner should, not be muleted in costs, as he has already lost the right of suit. The costs of the trial Court, however, shall be borne as directed, by the trial Court.


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