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Tarapada Sarkar Vs. Nepal Gazi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberC.R. No. 4429 of 1960
Judge
Reported inAIR1965Cal354
ActsCode of Civil Procedure (CPC) , 1908 - Section 148 - Order 9, Rule 13
AppellantTarapada Sarkar
RespondentNepal Gazi and ors.
Advocates:Amar Nath Roy Choudhury, Adv.
Cases ReferredMahanth Ram Das v. Ganga Das
Excerpt:
- .....deficit court-fee and also in the exercise of the inherent power of the court under section 151 of the code of civil procedure.8. the instant case is, therefore, also to be distinguished from the above case in that here the application for accepting the deposit was filed before the court on 8-6-1960 and the money was also deposited in the court on that date. the previous application for extension of time filed in the court on 7-6-1960 was never moved before the court and whatever order was passed by the court was on the basis of the application filed and the deposit made on 8-6-1960. therefore, section 148 of the civil procedure code could have no manner of application in this case and the court had no jurisdiction to enlarge the time under the section,9. in the result, the rule is made.....
Judgment:
ORDER

S.N. Niyogi, J.

1. The petitioner Tarapada Sarkar instituted Money Suit No. 95 of 1955 against defendant No. 1 Nepal Gazi and the Chakraborties (Defendants Nos. 2 and S), who are the opposite parties in this case, in the fourth Court of Munsif at Alipore for recovery of certain sum of money on account of his share of produce of some land In respect of the year 1361 U.S. This suit was contested by the defendants by filing a joint written statement. The date of peremptory hearing of the suit was fixed on 1-9-1959 and as the defendants failed to attend the Court or take any steps on that date, the suit was eventually decreed ex parte. Thereafter the defendants applied for setting aside the ex parte decree by filing an application under the provisions of Order 9, Rule 13 of the Code of Civil Procedure and the case was numbered as Misc. J. Case No. 192 of 1989. The above case was heard analogously with Misc. J. Case No, 193 of 1959, which arose out of a similar application filed under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex parte decree passed in Money Suit No. 135 of 1955 of the same Court Besides the Chakraborties. Nuro Molla and Tarijaddi Molla, respectively, figured as defendants Nos. 1 and 2 in that suit, which was also instituted by the present plaintiff and which was also decreed ex parte on 1-9-1919 under similar circumstances. After hearing the parties in both the oases the Court passed the following order on 21-5-1960:

'That the two Misc. case be allowed on contest without cost. The ex parte orders passed on 1-9-1959 in both the original suits are hereby set aside. The two original suits, e.g., M.S. 135/55 and 95/55 will be restored to file on the ptrs' paying cost of Rs. 16 by 7-6-1960. In default the two Misc. cases shall stand dismissed.'

2. No money was either paid to the plaintiff or deposited in the Court as directed, by 7-6-1960. On 7-6-1960 a petition for an extension of time by three days more for making the payment was filed in the Misc. J. Case No. 192 of 1959. However, that petition was not moved before the Court and on 8-6-1960 another petition showing cause and for condoning the delay to deposit the cost was filed by the defendants in that case. They also deposited the cost as ordered, in the Court on 8-6-1960. The plaintiff opposed the prayer of the defendants in this respect and after hearing both the sides the Court condoned the delay and accepted the cost so deposited, by his order No. 48, dated 30-7-1960. The Court then passed the following further order:

'Order No. 49, dated 30-7-1960.

In view of order No. 42, dated 21-9-1960 and No. 48, dated 30-7-1960 the Misc. case is allowed on contest and the ex parte order passed on 1-9-1959 is hereby set aside and the..... suit is restored to its original number and file and will now proceed. Parties to take steps in M.S. 95/55 by 18-8-1960.'

A similar order was also passed in respect of Money Suit No. 135 of 1955.

3. Being aggrieved by the above orders No. 48, dated 30-7-1960 and No. 49, dated 30-7-1960 the petitioner has filed this application under Section 115 of the Code of Civil Procedure.

4. It has been argued by the learned Advocate for the petitioner that no extension of time for making deposit could be given by the learned Munsif under Section 148 of the Code of Civil Procedure after the failure of the opposite parties to deposit the cost within the time fixed by the Court. The effect of the order was that in case of default of payment of cost by 7-6-1960 the application would stand dismissed. It has further been contended that when a decree or final order is passed the Court ceases to have any jurisdiction in the matter as the action is dead. In support of his contention the petitioner has relied on Gaya Din v. Lalta Prasad : AIR1936All477 ; Kshetra Mohan Ghose v. Gour Mohan Kapali : AIR1934Cal21 ; Mahomed Asraf All v. Nabijan Bibi : AIR1939Cal581 .

5. Under Section 148 of the Civil Procedure Code where any time is fixed for the doing of 'any act prescribed or allowed by this Court' the Court in its discretion may enlarge such period from time to time even though the period originally fixed may have expired. A conditional order of the nature passed by the learned Munsif restoring a case dismissed for default on condition of the payment of a reasonable amount of cost to the opposite parties within a lime fixed by the Court, is an order contemplated under Order 9, Rule 13 of the Code of Civil Procedure and is, therefore, quite a legal and valid order. As already stated, the order was that in case of default of payment of cost of Rs. 16 by 7th of June 1960, the application would stand as dismissed. The effect of the order would be that as soon as the time fixed in the order expired and no payment or deposit was made as directed, the application would stand dismissed. The preponderance of view held by different Courts is that thereafter the Court ceases to have any jurisdiction to extend the time thus limited by the order as the action is dead.

6. The opposite parties relied on a decision of this Court in Jyotish Chandra Sen v. Rukmini Ballav Sen, : AIR1959Cal35 , in support of their contention that the Court's jurisdiction to enlarge the time under Section 148 of the Civil Procedure Code was not taken away where there was a default clause in a conditional order that if the payment be not made within a specified time the application would stand dismissed. What happened in that case was that it was ordered by the learned Subordinate Judge that the additional written statement filed by pro forma defendant No. 7 would be accepted provided defendant No. 7 paid cost of Rs. 16 to the plaintiff by the 16th of May, 1957 and in default of payment of costs the additional written statement would stand rejected. Costs were not paid by the 16th of May, 1957 but on that date an application was made praying for extension of time. The application was, however, not moved on that date but was moved and heard in presence of parties' lawyers later on and on the 5th July, 1957, an order was passed by the Court extending the time for payment of costs to another date It was observed by this Court:

'In our judgment, the fact that there was a default clause that if the payment be not made the application will stand dismissed does not take away from the fullness of the Court's power to enlarge the time under Section 148 of the Code of Civil Procedure.'

But the said case is to be distinguished from the present case in that although, as stated above, an application for extension of time was Bled in this case on 7th June, 1960, that application was never moved before the Court. Instead another application was filed on 8-6-1960 for accepting the deposit made in the Court on that date after condoning the delay. So. the final order became effective on 7-6-1960 an soon as the opposite parties failed to make any payment in terms of the order by the date fixed. The effect of that order was that the application stood dismissed on 7-6-1960. On 8-6-1960 the action was dead and so there could be no question of any enlargement of time as contemplated under Section 148 of the Code of Civil Procedure.

7. My attention has also been drawn to the case, Mahanth Ram Das v. Ganga Das, : [1961]3SCR763 , decided by the Supreme Court. In that case on an appeal to the High Court of Patna the said Court held that the valuation for the purpose of the suit was Rs. 12,178-4-0 and that ad valorem Court fee was payable on it. The said Court thereafter gave a direction as follows:

If the amount is not paid within the time given, the appeal will stand dismissed. If the Court-fee is paid within the time given, the appeal will be allowed with costs and the suit brought by the plaintiff will stand decreed The time so given had expired on July 8, 1954, but the appellant was not able to find money and it appears that the appellant's Advocate in the High Court asked the case to be mentioned before the Vacation Judge on July 8, 1954, so that a request for extension of time could be made. No Division Bench, however, was sitting on that date, and the appellant filed an application on July 8, 1954, requesting that he be allowed to pay Rs. 1,400 immediately, and the balance, within a month thereafter and this application was placed before a Division Bench of the said Court which ordered that the application for extension of time would be dismissed as by virtue of the previous order of the Bench the appeal had already stood dismissed as the amount was not paid within the time given. The appellant moved an application under Section 151 which was rejected. Another application for review under Order 47, Rule 1 of the Civil Procedure Code was also not allowed. It was held by the learned Judges that those sections apply only to those cases which were not finally disposed of, and the time would then be extended only before the final order was actually made. An appeal against that order was then filed before the Supreme Court on obtaining a certificate from the Patna High Court. The Supreme Court held that in such a case the High Court had jurisdiction to extend time on the application which had been filed before the time fixed by the High Court for payment of deficit Court-fee and also in the exercise of the inherent power of the Court under Section 151 of the Code of Civil Procedure.

8. The instant case is, therefore, also to be distinguished from the above case in that here the application for accepting the deposit was filed before the Court on 8-6-1960 and the money was also deposited in the Court on that date. The previous application for extension of time filed in the Court on 7-6-1960 was never moved before the Court and whatever order was passed by the Court was on the basis of the application filed and the deposit made on 8-6-1960. Therefore, Section 148 of the Civil Procedure Code could have no manner of application in this case and the Court had no jurisdiction to enlarge the time under the section,

9. In the result, the Rule is made absolute with costs. The impugned orders, dated 80-7-1960 be set aside. Hearing fee is assessed at one gold mohur.


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