M A MUKHEED Vs. C PANDURANGAM

JUDGEMENT

(1.) The petitioner is the defendant in O.S. No.74 of 2002, filed for recovery of certain amount, in the Court of Senior Civil Judge, Mahaboobnagar. He was set ex parte, and ultimately, an ex parte decree was passed on 23-1-2003, The petitioner filed I.A. No.416 of 2003, under Order 9 Rule 13 C.P.C. That petition was ordered, on condition that he shall pay costs of Rs.200/-, on or before 15-6-2004. The petitioner did not comply with that condition. He filed I.A.SR. No.2026 of 2004, for enlargement of the time for compliance with the condition imposed in I .A. No.416 of 2003. The trial Court dismissed the I.A.SR., through its order dated 2-12-2004, on the ground that it is not maintainable.

(2.) Heard the learned counsel for petitioner and the learned counsel for respondent.

(3.) When the petitioner committed default in responding to the summons received by him in the suit, an ex parte decree came to be passed. The trial Court has shown indulgence and set aside the ex parte decree, dated 23-1-2003, imposing a condition that he shall pay costs of Rs.200/-, on or before 15-6-2004. The present I.A. is filed for enlargement of the time. The trial Court took the view that since the order passed in I.A. No.416 of 2003 worked itself out, on account of non- compliance with the condition, the I.A. is not maintainable. It also was of the view that unless an application for enlargement is filed before the expiry of the time stipulated by the court, it is not maintainable. The same is not correct. The exercise of powers of the court under Section 148 C.P.C. cannot be denied on such ground. An application under Section 148 C.P.C. can be filed even after the expiry of the time stipulated by the court, and even in cases where a default clause, or a stipulation that no further extension would be granted, are incorporated. Reference in this regard may be made to the judgment of the Supreme Court in Ganesh Prasad v. Laxshmi Narayan and Full Bench judgments of the Kerala and Allahabad High Courts, respectively, in Kathyee Cotton Mills v. P.P. Pillar and Gobardhan v. BarsatP. In Ganesh Prasad's case, the Supreme Court held as under: