1. The facts of the case giving rise to the application on which this Rule was granted may be briefly mentioned: The opposite party were the plaintiffs in a suit for partition and accounts, Suit No. 18 of 1928, brought in the first Court of the Subordinate Judge, Howrah, against the petitioner as defendant. The suit was dismissed by the trial Court on 5th August 1930, on the ground that the plaintiffs were out of possession, and the suit as laid was not maintainable. On appeal by the plaintiffs Mr. R.R. Mukherjee, Additional District Judge, Howrah, allowed the plaint in the plaintiffs' suit to be amended, and directed payment of ad valorem court-fees on the amended plaint, within a period of time fixed by the learned Judge. The decree bearing date 28th August 1931, that was prepared and which was signed on 23rd September 1931, was in the following terms:
It is ordered that the amendment be allowed as per order of judgment, on condition of paying the necessary court-fee, and on paying the defendants his costs of the original appellate Court, up to this stage, within two months after arrival of the record in the Court below. If the costs be not so paid or deposited, the suit will stand dismissed with costs throughout.
2. The plaintiffs failed to carry out the direction of the appellate Court within the time mentioned in the decree, and applied to Mr. R.C. Sen, Additional District Judge, Howrah, the successor-in-office of Mr. Mukherjee, for extension of time, for enabling them to carry out the directions. Extension of time was granted by Mr. Sen on two occasions: once on 13th November and again on 21st November 1931. The orders granting extension of time to the plaintiff were made without notice to the defendant in the suit, the petitioner in this Rule, who applied to Mr. Sen to reconsider his orders, on the ground that Mr. Sen had no jurisdiction to vary the decree passed by Mr. Mukherjee, and extend time; and prayed for vacating the same. The learned Additional District Judge, Mr. Sen, on 13th January 1932, rejected the application, but Observed that if he gave a wrong decision, he could, not rectify the error; and if he was so inclined the petitioner could move this Court and get its decision on the point. The defendant has applied to this Court for setting aside the order's passed by Mr. Sen, Additional District Judge,on 13th and 21st November 1931, and 13th January 1932.
3. On behalf of the petitioner it has been argued that the decree passed by Mr. Mukherjee in appeal was a 'final decree, and no extension of time could be allowed for carrying out the directions contained in the same, unless it was by way of an order on an application for review of judgment made by Mr. Mukherjee. It, has been contended before us that. Section 148, Civil P.C. could not have any application where time was fixed by a decree, and reference was made to some decisions by the different High Courts in this country. The decision of this Court in the case of Khajeh Habibullah v. Asmotar Khatun AIR 1923 Cal 612 has been very strongly relied upon, in support of the arguments on behalf of the petitioner. That decision however does not touch the facts and circumstances of the case before us, regard being specially had to the terms of the decree which have been set out above. The direction contained in the decree as to the dismissal of the suit related only to nonpayment or non-deposit of costs, within the time specified, and not to the payment of court-fees consequent upon the amendment of plaint, allowed by the appellate Court. Mr. Sen, the successor-in-office of Mr. Mukherjee had therefore the jurisdiction to enlarge the time for, payment of sufficient court-fees, and his orders made in this behalf could not be challenged on the ground that they were without jurisdiction. The direction in the decree as to payment or deposit of costs, although inseparably connected with the other directions in the decree, stands on a different, footing, inasmuch as failure to comply with the direction within the time specified, was to result in the dismissal of the suit.
4. The order granting extension of time for payment or deposit of costs could not be said to be strictly in accordance with, law, regard being had to the terms of the, decree; but we have no hesitation in holding that the order was one which met the ends of justice in the case, after the learned Judge considered it fit and proper to enlarge the time for payment of court-fees. If no discretion whatsoever was to be exercised in cases coming up to this Court, in revision, we would have to interfere with the order enlarging time for payment or deposit of costs, although no case has been made out for our interference with the order extending the time for payment of court-fees As it stands the order of the Judge is erroneous under the law, as it was not passed by the Judge, who made the decree, but it is not one which should be interfered with in the exercise of the revisional jurisdiction of this-Court. The interference with-the order would lead to the final dismissal of the suit, causing perhaps irreparable loss to the opposite party and as such amounting to a denial of justice to them. In the result the Rule is discharged; but in view of the conduct of the plaintiffs-opposite party in obtaining ex parte orders from Mr. Sen, without notice to the petitioner, the opposite party are to pay to the petitioner his costs in this Rule; the hearing-fee in the Rule is fixed at five gold mohurs.
M.C. Ghose, J.
5. I agree.