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R.M.P.R.M.M. Subramaniam Chettiar Vs. K.S. Subbiah Ayyar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1933Mad563; (1933)65MLJ538
AppellantR.M.P.R.M.M. Subramaniam Chettiar
RespondentK.S. Subbiah Ayyar
Cases ReferredBalakrishna Aiyar v. Parvathammal
Excerpt:
.....made and the order asked for may be granted'.he also pointed out that 'there is another form of order available and appropriate where the court thinks that severe terms should be imposed, namely, that on failure to do certain acts within a specified time then 'the action do stand dismissed without further order'.in this case no such words are in the order'.that case is very much stronger than the present where there is no sort of order that the petition do stand dismissed or that execution shall proceed in default of payment......party respondents a sum of rs. 50, as costs within a week, in default therein, the appeal shall stand dismissed without reference to this court'. there is no difficulty whatever in the decision looking to the terms of the order. but, with respect, i am unable to agree with one of the grounds stated as follows : 'now the doing of the act in this case, namely, paying the sum of rs. 50 to the petitioner was not the doing of an act prescribed or allowed by the code. in the circumstances section 148 has no application whatever.' the learned judge had earlier expressed the opinion that it was 'a good and operative order'. an action taken by a court under section 151 is no doubt correctly described as not one prescribed by the code but to say that a good and operative order under this.....
Judgment:

Pakenham Walsh, J.

1. This is a revision petition against an order excusing delay and continuing stay in an execution petition. The Plaintiff, the mortgagee, brought the suit against the lessee of the mortgagor and obtained a decree to recover possession and mesne profits from the defendant. The defendant appealed and asked for stay of execution in I.A. No. 211 of 1931 on which the following order was passed : - 'There will be a stay of delivery of possession. Further determination of mesne profits up to the date of judgment will continue. The stay granted is conditional on the appellant paying the kist and the full rent of Rs. 3,250 less the kist to the respondent by the end of February each year. The first payment to be by February, 1932.' The rent was not paid by February, 1932 and an extension was asked for on which the District Judge passed the following order: 'In Amanatullah v. Raghunath : AIR1930Pat279 and Pearey Lal v. Sita Ram : AIR1929All266 it is held that the Court has no jurisdiction to extend the time fixed in a decree. That has no reference to this petition. The time was stated as the date on which it was expected that the harvest could be disposed of. There is nothing to prevent extension of the time, and it is proper to extend it where cause is shown. The delay will be excused as the whole amount more or less has been deposited and the stay I will be continued. No costs.' The contention before me is that the Court had no power to extend the time. I agree that this order was not under Order 41, Rule 5(3) and that it must be considered as an order passed under Section 151. From this it is argued that Section 148, by which the Court can grant an extension, is not applicable. Sheikh Hamidur Rahman v. Shahanand Das A.I.R. 1925 Pat. 153 the decision of a single Judge, is quoted in this connection. In that case an appeal had been filed by the judgment-debtor against an order refusing to set aside a sale under Order 21, Rule 90. The Court allowed it with the following express condition 'that the appellant do pay to the contesting opposite party respondents a sum of Rs. 50, as costs within a week, in default therein, the appeal shall stand dismissed without reference to this Court'. There is no difficulty whatever in the decision looking to the terms of the order. But, with respect, I am unable to agree with one of the grounds stated as follows : 'Now the doing of the act in this case, namely, paying the sum of Rs. 50 to the petitioner was not the doing of an act prescribed or allowed by the Code. In the circumstances Section 148 has no application whatever.' The learned Judge had earlier expressed the opinion that it was 'a good and operative order'. An action taken by a Court under Section 151 is no doubt correctly described as not one prescribed by the Code but to say that a good and operative order under this section is not one allowed by the Code appears to me to be a contradiction in terms. If the action of the Court is permissible under Section 151, and it is not disputed that it is so, then I am unable to understand how the Court can be said to do an act which is not allowed. I therefore cannot accede to the argument that Section 148 has no application. Apart from this argument there is nothing to support the petitioner's contention. As observed by the learned District Judge this is not a case of altering the terms of the decree nor is the case like Pilcher v. Hinds (1879) 11 Ch. 905, where one act had to be done before another could be performed. In this connection Collinson v. Jeffery (1896) 1 Ch. 644 is relied on but it is really against the Petitioner. The order there was 'in default of such lodgment within two months from the date of this order the action be dismissed with costs'. Yet Kekewich, J. said : 'It appears to me however that this action is not dead. It is comatose; it is moribund; but a final stroke is required to effect death. That final stroke has not been delivered and therefore in my opinion the application is properly made and the order asked for may be granted'. He also pointed out that 'there is another form of order available and appropriate where the Court thinks that severe terms should be imposed, namely, that on failure to do certain acts within a specified time then 'the action do stand dismissed without further order'. In this case no such words are in the order'. That case is very much stronger than the present where there is no sort of order that the petition do stand dismissed or that execution shall proceed in default of payment. Balakrishna Aiyar v. Parvathammal : (1927)53MLJ494 is a case where there was an express direction to give security within a specified time 'otherwise the petition to stand dismissed with costs'. There is a discussion there on the subject in which the Chancery ease already quoted is alluded to. That whole discussion is based on the categorical terms of the order and it would have been unnecessary, if the Petitioner's view is correct, that the order automatically terminates in such a manner as to exclude extension although nothing of the sort appears in the order itself.

2. The petition is dismissed with costs.


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