N R NAINAR MOHAMED Vs. KHAJA MOHIDEEN

JUDGEMENT

(1.) This Civil Miscellaneous Petition prays for extending the time to deposit the cost of Rs. 395.50 granted by the Order dated 2-1-1989 in C.M.P. No. 2051 of 1988 in this Second Appeal. By the said Order, interim stay granted already, was made absolute on condition that the petitioner herein deposited into the trial Court the said cost within 4 months from the abovesaid date 2-1-1989. The said order also added that failing such compliance, the stay would stand vacated automatically. Thus, the petitioner herein ought to have deposited the cost before 2-5-1989. But, it was not deposited. This petition was filed only on 11-12-1989 for extension of the said time given, by another six weeks from the date of the order in this petition.

(2.) Initially when I posed the question whether the present petition is maintainable since the original conditional order dated 2-1-1989 was passed with a default clause as stated above, the learned counsel for the petitioner relied on the decision in S. Floranc Kasthurbai v. Fathima College, Madurai, (1986-1 MLJ 220), where this Court held relying on S.148, C.P.C. that the Court had the power to extend the time where ex parte order was set aside on condition that the defendant should pay some amount before certain date. But, from the facts gathered from the said judgment, I do not find similar default clause there, as in the present case.

(3.) However, in Mahanath Ram v. Ganga Das, AIR 1961 Supreme Court 882, which was relied on in the above- referred to (1986) 1 MLJ 220, there was such a default clause and yet the Supreme Court extended the time in a case where the application to extend the time was made before the expiry of the original time fixed. The Supreme Court observed thus : A fortiori, those Sections (Sections 148 and 149) could be invoked by the applicant, when the time had not actually expired. According to the Supreme Court, an order extending time for payment, though passed after the expiry of the fixed period, could operate from the date on which the fixed period expired.