MOHAN LAL Vs. LADLI PRASAD

JUDGEMENT

(1.) THIS application pur porting to have been filed under Sec tion 151 of the Code of Civil Procedure contains a prayer that the delay of one week in depositing the costs in compli ance with my order dated 14-5-1970 may be condoned and the consequential order resulting in the dismissal of the re storation application for this non-compli ance may be set aside and that the res toration application may be revived.

(2.) THE facts of the case were that the was dismissed in default of the appellants on 1-8-1969. The appellants then applied for restoration of this appeal and that application was allowed by me condi tionally on 14-5-1970 in the following terms:-

(3.) I have heard the learned coun sel for the parties. The learned counsel for the petitioners contended that though the case would not be covered by Sec tion 148, Civil P. C. this court can ex ercise its inherent power under S. 151 to grant the relief prayed for by the petitioners. In this connection he refers to a decision of the Supreme Court in Mahant Ram Das v. Ganga Das, AIR 1961 SC 882 in which it was held that where a Bench of the High Court, while deciding an appeal in favour of the ap pellant, passed a peremptory order fixing the period for payment of deficit court-fee and the appellant made an applica tion for extension of time before the time fixed had run out, but the application came on for hearing be fore a Division Bench after the period had run out, the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. In that case the order fixing time for payment of the court-fee was, no doubt, a peremptory order like the order dated 14-5- 1970 passed by me and provided that in de fault of payment of court-fee within the time fixed, the appeal .shall stand dis missed, but the appellant had moved an application praying for further time be fore the time so fixed had run out and it was on account of the circumstances beyond his control that this application could not be disposed of on that very day and it came before a Division Bench for hearing after that time had run out. On those" facts it was held that even after the original time had run out the Court was not powerless to extend the time on the basis of the application that had been made prior to the fixed time running out and that in such a case the order so passed would be deemed to take effect from the date on which the ap plication had been made for further ex tension of time. In the pfesent case, as noted above, no such application for extension of time was given before the time fixed in the peremptory order had completely run out. The application was made more than two months thereafter. The peremptory order, which was a self-contained order, came into operation when the costs had not been paid till 21-5-1970. On these facts neither Sec tion 148 nor S. 149 would be applicable nor the time can be extended under the inherent powers under Section 151. The Bench decision of this court in Gaya Din v. Lalta Prasad (AIR 1936 All 477) is directly an authority on the point before us. In this case it was held that if the condition laid down in the peremptory order is not complied with within the time fixed in that order and in the event of non-compliance, the order operates automatically and without fur ther intervention of the court. Sec. 148 cannot be applied for the obvious reason that the court ceases to be seized of the matter and becomes functus officio.