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Sreepathi Balaiah Alias Bala Gurumurthy and anr. Vs. Darsi Ramayya and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1941Mad706; (1941)1MLJ638
AppellantSreepathi Balaiah Alias Bala Gurumurthy and anr.
RespondentDarsi Ramayya and anr.
Cases ReferredBalakrishna Aiyar v. Parvathammal
Excerpt:
- - in revision it is contended by the petitioners that by the terms of the original order of the 15th april, the appeal would stand dismissed as from the 15th may, owing to the failure of the appellants (respondents here) to pay rs. the application granted by the lower court was not made under section 148 of the code of civil procedure, but under section 151 invoking the inherent powers of the court and it was not a case of a mere mistake by the party which led to his failure to comply with the conditions......allowed and that in default of payment of the sum of rs. 15 as specified above the appeal would stand dismissed with costs. it would appear that when this judgment was pronounced neither side was present. in incorporating the result of, the judgment into the rough diary maintained by the court, an unfortunate error was committed; instead of the sum of rs. 15 the sum of rs. 12 was inscribed. the respondents' advocate referring to the rough diary found that rs. 12 had to be paid and without undue delay paid that sum to the petitioners' advocate. this payment was made two weeks after the judgment was pronounced. when the court re-opened after the vacation it was discovered that a mistake had been made and that an amount of rs. 3 had not been paid which should have been paid in order to.....
Judgment:

Wadsworth, J.

1. This Civil Revision Petition arises out of an order passed in the following circumstances. The respondents were the appellants before the District Judge and their appeal was preferred against an order decreeing the suit ex parte. The District Judge passed an order that on condition the appellants paid Rs. 15 within one month the appeal would stand allowed and that in default of payment of the sum of Rs. 15 as specified above the appeal would stand dismissed with costs. It would appear that when this judgment was pronounced neither side was present. In incorporating the result of, the judgment into the rough diary maintained by the Court, an unfortunate error was committed; instead of the sum of Rs. 15 the sum of Rs. 12 was inscribed. The respondents' advocate referring to the rough diary found that Rs. 12 had to be paid and without undue delay paid that sum to the petitioners' advocate. This payment was made two weeks after the judgment was pronounced. When the Court re-opened after the vacation it was discovered that a mistake had been made and that an amount of Rs. 3 had not been paid which should have been paid in order to comply with the formal order. The respondents therefore filed an application under Section 151, Civil Procedure Code to extend the time to pay the balance of the amount of costs. The learned District Judge accepted the contention that there was a bona fide mistake and extended the time till the date of that order and the balance was paid at once. In revision it is contended by the petitioners that by the terms of the original order of the 15th April, the appeal would stand dismissed as from the 15th May, owing to the failure of the appellants (respondents here) to pay Rs. 15 within the time allowed and that as the appeal had been dismissed the Court had no jurisdiction to grant an extension of time at a later date.

2. The petitioners rely upon the observations of the Bench which decided Balakrishna Aiyar v. Parvathammal : (1927)53MLJ494 . It is true that the finding in that case made it unnecessary for the Court to decide whether there was power to extend the time in circumstances similar to those now under consideration. But the learned judges discuss the law on the subject at some length and give a considered opinion which, though perhaps not an actual decision, must be treated with great respect. With respect I may say that I see no reason to differ from that opinion. When a Court has granted time within which a payment must be made and has declared that in default of payment within the time specified the proceedings will stand dismissed, there is in my opinion no power under Section 148 of the Code of Civil Procedure after the date on which those proceedings would stand dismissed, to extend the time in which the payment was to be made; moreover I should not be inclined to refuse to interfere in revision with an order passed under Section 148 in such circumstances without jurisdiction, merely on the ground of hardship to the person adversely affected.

3. But the present case stands on a somewhat different footing. The application granted by the lower Court was not made under Section 148 of the Code of Civil Procedure, but under Section 151 invoking the inherent powers of the Court and it was not a case of a mere mistake by the party which led to his failure to comply with the conditions. The basic mistake which led to the trouble was the mistake of the Court's officer. The rough diary is maintained by the Court for the benefit of parties so that they may readily find out what has been the nature of the order passed. In the present case the rough diary contained an entry to the effect that the respondents must pay Rs. 12 within one month and they complied with that order. Unfortunately that order wrongly set forth the nature of the actual order of the Court. But it seems to me that the Court must have inherent power to prevent a party from being damnified by the error of the Court's own officer. The respondents did that which they should have done according to the order as embodied in the rough diary. The money was received without objection by the petitioners' advocate who seems to have been under the same misapprehension owing to the terms recorded in the rough diary; and though, in my opinion, the District Judge had no power under Section 148 of the Code of Civil Procedure to re-open a closed matter and give an extension of time, he had power under Section 151, Civil Procedure Code to do that which was necessary for the ends of justice in order to set right the consequences of an unfortunate error committed by an officer of Court. In this view I decline to interfere in revision With the District Judge's order, but in the circumstances I direct each party to bear his own costs in this Court.


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