MUNIAMMAL Vs. SAKKUBAI

JUDGEMENT

(1.) The question which has been argued vehemently by the parties in this revision petition is, whether there is jurisdiction in the Civil Court to extend the time for payment of costs where a conditional order is made by the Court allowing a petition on payment of costs with a direction that 'otherwise the petition will stand dismissed.' We are really not concerned with the merits of the application which was made by the petitioner-defendant for setting aside an ex parte decree.

(2.) The suit in question is a suit for possession filed on 17-8-1982. An ex parte decree was passed against the petitioner on 15-12-1983. Two of the defendants, being defendants Nos. 2 and 3 filed an application to set aside the ex parte decree passed on 16-7-1985. That application came to be dismissed for default on 3-12-1985. The defendants, therefore, filed I A. 1183 of 1986 to set aside the dismissal of the application for setting aside the ex parte decree on 20-12-1985. This application remained pending. Ultimately, on 23-1-1987, an order came to be made on this application allowing it on payment of costs on or before 2-2-1987, with a direction that 'otherwise the petition will stand dismissed'. The further order is 'call on 13-2-1987'. Now admittedly no costs were paid on or before 2-2-1987 as directed by the court by the order dated 23-1-1987. When the application was called out on 3-2-1987 the order passed by the learned Judge was 'payment of costs call on 23-2-1987'. On 23-2-1987, the order was made 'payment of costs call on 12-3-1987'. A similar order was made on 12-3-1987, requiring the application to be called on 2-4-1987. In the meantime on 18-3-1987 the petitioner and the other defendants filed I A-5455 of 1987 for stay. On this application, an order came to be made granting stay till 2-4-1987 on condition that the costs ordered be deposited by 19-3-1987. The decree holder was given notice to appear on 2-4-1987. It is not in dispute that on 17-3-1987 another application came to be made being IA 5454 of 1987 for extension of time and costs came to be deposited on 17-3-1987. Now the prayer in IA 5454 of 1987 was that time for payment of costs should be extended. The application purported to be one under S.151 C.P.C. and S.148 of the Code. This application came to be disposed of an 15-5-1987. The learned VIII Assistant Judge, City Civil Court, Madras held that the defendants had not complied with the conditional order. In as much as they had not paid costs on or before 2-2-1987. He took the view that the petition for extension of time for payment of costs having been filed after the period for payment of costs had expired, the court had become functus officio, and the application was, therefore, dismissed. The learned Judge also expressed the view that 'It is a different matter if the application for extension of time had been filed before 2-3-1987, the deadline. It is not the case. It is this order which is challenged by the second defendant, who in the plaint has alleged to be a tenant of the plaintiff.

(3.) The learned counsel appearing on behalf of the second defendant has contended that, having regard to the order made from time to time by the learned Judge and especially the order dated 15-3-1987, by which the learned Judge further directed the costs to be deposited in court on 19-3-1987, he was in error in rejecting the application No. 5454 of 1987. The argument is that the series of orders commencing from 3-2-1987 indicated that time was extended from time to time for payment of cost and, since costs have been deposited on 17-3-1987, that is, even before the court made the order on 18-3-1987, on IA 5454 of 1987, the court could not have rejected the application I.A. 5454 of 1987 on the ground that it was made prior to 2-2-1987.