1. These two petitions raise an interesting point of limitation law for determination in connection with orders passed under Order 9, Rule 13, Civil P. C.
2. The petitioner was a defendant in two suits. The first was by his wife's brother O.S. No. 319 of 1947 for recovery of mesne profits. This was decreed 'ex parte' on 9-1-1948. He filed an application to set the decree aside on 23-1-1948. On this an order was passed on 19-1-1949 directing the decree to be set aside on certain conditions; that Rs. 25 was to be paid by 7-2-1949 and in default the application was to be dismissed. The petition was called on 8-2-1949 and the Court passed a further order 'Costs not paid. Dismissed.' The petitioner appealed against this order to the District Judge, who on payment of Rs. 41 by the petitioner to the respondent directed the 'ex parte' decree to be set aside. In C.R.P. No. 1843 of 1949 filed by the plaintiff in that suit against that order, Balakrishna Aiyar J. set aside the order of the District Judge observing that there was no finding that the appellant was prevented by sufficient cause from appearing in the trial Court on the relevant date, and inter alia directing a Question of limitation) viz., that the appeal to the District Judge was time barred to be heard and disposed of. The learned District Judge dismissed the appeal with costs on the sole ground that the appeal was time barred as the order to be appealed against was the first order dated 19-1-1949 and not the formal order of dismissal on 8-2-1949. If the latter date is taken into consideration, the appeal would be in time.'
3. The same point has arisen in another suit, O.S. No. 139 of 1950 filed by the plaintiff's wife for maintenance in which she claimed Rs. 30 a month. This was decreed 'ex parte' on 26-7-1950. The application to set aside this decree was filed on 21-8-1950, and a conditional order passed on 25-10-1950 allowing it to be set aside on petitioner paying Rs. 35 costs and depositing Rs. 150 by 1-12-1950, with a direction that in default his application was to be dismissed. This application was called on 1-12-1950 when the Court passed the following order :
'Costs alone tendered, but refused. The petitioner wants time to pay Rs. 150. The order works itself out. The petition is therefore dismissed.'
4. Petitioner's appeal to the District Court, C.M.A. No. 4 of 1951 was heard on the same date as his previous appeal C.M.A. No. 20 of 1949 and similarly dismissed as being time barred in a separate judgment.
5. The point for determination is what is the criterion date for limitation in a case of this kind for purposes of an appeal. Under Order 43 Rule 1 (d), an appeal shall He from an order under Rule 13 of Order 9 rejecting an application (in a case open to appeal) for an order to set aside a decree passed 'ex parte'. This is the only provision in law under which these appeals lie. The conditional order passed in these two cases is of a very common type and frequently used on the admission side of this Court. It is regarded as a final order, one favourable to the petitioner, if he complies with the conditions by the appointed date, whereas if he fails to do so, the order works itself out automatically as one of dismissal adverse to the petitioner. In -- 'Ramayya v. Lakshmayya', ILR (1945) Mad 203, Mockett and Bell JJ. considered a conditional order of dismissal of this kind and held that it was final and appealable, the further order of dismissal for default of compliance, with the creditors, merely recording the legal position which had arisen from non-fulfilment of the condition precedent. A different view was taken by Madhayan Nair J. sitting by himself in -- 'Rajagopalachari v. Narasimha Thathachariar : AIR1925Mad1182 , that the first order of the trial Court was merely conditional and that it was only the final order dismissing the application to set aside the 'ex parte' decree, which was appealable under Order 43, Rule 1(d). In that case too, the conditional order was to the effect that if the money was not paid by the appointed date, the petition will stand dismissed with costs. That decision was considered by the learned Judges in -- 'Ramayya v. Lakshmayya', ILR (1945) Mad 203 and differentiated on the ground that in that case the parties all treated the conditional order as open, and that on the date of subsequent posting, there was some discussion as to terms. The only fact from which this inference was drawn was the posting of the application to a following date as is apparent from the following observation by Madhavan Nair J. himself: 'In this case all the parties as well as the Court treated the prior order as a conditional order because it appears, as I have already pointed out, from the note on the order passed on the first occasion that the petition was to be posted for 13-9-1923 meaning thereby that no final order has been passed upon it and the learned District Munsif would pass final orders only on that day, and the subsequent history of the application also shows that it was never intended to treat the order as a final one.' I have found great difficulty in differentiating between cases in which conditional orders passed in precisely the same terms can be treated as final and those which cannot be so treated. In the circumstances I prefer, and I am also bound to follow the Bench decision in -- 'Ramayya v. Lakshmayya', ILR (1945) Mad 203, which took the view that such a conditional order is final and appealable. It is true that such an order, as the petitioner's learned advocate contends, is in a sense favourable to him. He urges that his application has not been dismissed until he has failed to comply with the conditions, and that only after his application is finally rejected that his right of appeal arises under Order 43 Rule 1(d).
6. Mr. T.M. Krishnaswami Aiyar contends contra that the conditional order is one definitely & finally rejecting the application under Order 9, Rule 13, unless a condition is fulfilled by a certain date, and that a petitioner cannot wait without either appealing against the conditional order or complying with the condition, and then reckon time from the date on which the order rejecting his application has worked itself out. A different view appears to have been taken more in harmony with the view of Madhavan Nair J. in -- 'Rajagopalachariar v. Tbathachariar : AIR1925Mad1182 ,' by Oldfield and Blake well JJ. in -- 'Venkata-swami Naidu v. Shanmuga Pillai', 1917 Mad WN 815, a decision also considered in --'Ramayya v. Lakshmayya', ILR (1945) Mad 203, and differentiated on the ground that the precise terms of the order passed by the lower Court were not set out there. A view in favour of the petitioner has been taken by the Allahabad and Bombay High Courts. A Full Bench of the Bombay High Court in --'Narayan Putappa v. Vaikunt Subaya', 51 Bom 67, held that an appeal lay against the second order in such cases. Marten C. J. in his judgment made reference to two types of orders which were usual in the mofussil (a) a preliminary order and (b) a final order, whereas on the original side of the High Court there was only one order that if the applicant did not comply with the condition stated, his application was to be dismissed, and the original ex parte decree to stand. He then went on to make the following observations (at p. 75) with which I am with respect in complete agreement.
'Though pro forma an appeal may lie, still in the vast majority of cases, the appeal will be one of those known as 'hopeless', because the conditions imposed by the lower Court will be reasonable ones and accordingly if they are not fulfilled, the only result will be that the appeal will be dismissed with costs. It can only therefore be in exceptional cases such as those where the lower Court has not exercised its discretion judicially or where quite unreasonable conditions are imposed, that an appeal of this nature can have any chance of success.'
In -- 'Jagarnath Sahi v. Kamta Prasad', 36 All 77, a Bench of the Allahabad High Court, Ryves and Piggott JJ. also held that an appeal lay from the second order in such cases and, further more that the lower Court had jurisdiction to extend the time for payment of the damages or to pass a fresh conditional order setting aside the decree upon terms, the original order having become inoperative. That was a case in which a suit was ordered to be restored to file on 31-3-1913 subject to the payment of Rs. 15 as damages by the appellant within three days to the plaintiff. The Subordinate Judge, who passed his order, was transferred immediately afterwards and the matter came up before his successor on 4-4-1913, on which date the money was tendered in Court and refused by the plaintiff. The question arose whether the other Subordinate Judge had jurisdiction to extend the time. This is a type of case which is always cropping up. With great respect I am in agreement with the view taken by Mockett and Bell JJ. that the first order in such cases must be regarded as final and appealable. It is tantamount to a rejection of an appeal unless certain conditions are satisfied. It is opsn to a party affected by such an order to appeal on the ground that the conditions imposed are too onerous, that the ex parte decree should be set aside or the suit restored to file without any terms at all.
I am extremely reluctant to take this view to its logical conclusion pressed upon me by Mr. T.M. Krishnaswami Aiyar, that the Court after passing such an order is absolutely powerless, and hamstrings itself from passing any further order in the application, which may be necessitated by changed conditions or exigencies of various kinds. Under Section 148, Civil P. C. 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 its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. The point would arise whether such discretionary; orders passed from time to time extending time for compliance with conditions fixed by the original order will be appealable. A solution of the dilemma is by no means easy, and the question has, in no decision, which has been placed before me, been considered from the standpoint of limitation. Order 43, Rule 1 (d) contemplates one appeal against the rejection of an application under Order 9, Rule 13. A single application cannot be rejected on two different dates to permit of two different criterion dates for limitation. The only practicable and possible view to take appears to be that the conditional order, which is the basis of the rejection of the application, is the only appealable order, if the petitioner is aggrieved by it in any way or finds it impossible to comply with the conditions as inequitable or onerous, in which case he should appeal against it within the prescribed period from the date of such order. If the Court does pass a further discretionary order varying on his application the conditions of the original order or extending time for performance which will form a fresh basis for a rejection of the application, it would be open to an applicant to file an appeal against such an order. It is clearly not open to a petitioner after such a conditional order is passed against him to do nothing at all as in the present cases by way of compliance or even by moving the Court before the date fixed for compliance to extend the time, and then to claim a right of appeal from the date on which the dismissal of his application for the default is recorded. The observations of Marten C.J. in--'Narayana Putappa v. Vaikunt Subaya', 51 Bom 67, reproduced supra, are apposite to the present cases in which it cannot be said that the terms imposed for setting aside the ex parte decree were unreasonable or onerous. Bound as I am to follow, the view in -- 'Ramayya v. Lakshrnayya', ILR (1945) Mad 203 with which as I have indicated with respect, I also agree that such a conditional order is final and appealable, it must follow, although this limitation aspect was not considered in that judgment, that these appeals against the subsequent orders of formal dismissal have been rightly held by the District Judge to be time barred.
7. The petitions are dismissed, but on them I make no order as to costs.