BROJOMOHAN SABUI Vs. BINAPANI SUR

JUDGEMENT

(1.) THIS application is directed against an order passed by the learned District Judge, Hooghly, dismissing the petitioners' appeal against an order passed by the learned Munsif, Hooghly, on February 27, 1963 dismissing the miscellaneous case under Order 9, Rule 13 of the Code of Civil Procedure. What happened is as follows : -The opposite parties filed a Title Suit No. 63 of 1960 in the Second Court of the Munsif at Chandernagore against the petitioners. That suit was decreed exparte on May, 29, 1962, in the absence of the petitioners. Thereafter there was an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. This application was allowed by the learned Munsif by an order dated February 27, 1963 on condition of making a payment of Rs. 40/- as costs by March 5, 1963. This order further directed that in case of default of payment of this sum, the application would stand dismissed. The deposit was not made by the date fixed and final order dismissing the application was passed. The petitioners then made a deposit of the sum on 6. 3. 63 but it was not accepted. An application under section 151, Civil Procedure Code filed was rejected by the learned Munsif by order dated 27. 4. 63 as a final order was passed and he was functus officio. The petitioners then filed an appeal against the order and the learned District Judge after hearing the parties summarily dismissed the appeal on the ground that there was no merit in the appeal. Mr. B. C. Roy appearing for the petitioners has argued that the learned Munsif did not dismiss the petition on merits but he was wrong in holding that he was functus officio for extending the period of time by one day and accepting the deposit and passing final order allowing the application under Order 9, Rule 13 of the Code of Civil Procedure. In support of his contention he has referred to a Supreme Court decision reported in (1) A. I. R. 1961 S. C. page 882 (Mahanth Ram Das v. Ganga Das) There also the question cropped up in connection with deposit of court fees on the valuation and the party was directed to make the payment within a certain date and it was further directed that "if the amount is not paid within the time given, the appeal will stand dismissed. If the court-fee is paid within the time given, the appeal will be allowed with costs The learned Judges of the High Court, who heard this application, held that sections 148 and 149 of the Code of Civil Procedure applied to cases which were not finally disposed of, and that time under them could be extended only before the final order was actually made. The Supreme Court held, however, that "the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment. Section. 148, in terms, allowed extension of time, even if the original period fixed had expired, and section 149 was equally liberal. A fortiori, those sections could be invoked by the applicant, when the time had not actually expired. An order extending time for payment, though passed after the expiry of the time fixed, could operate from the date on which the time fixed expired. " The Court fur her held that "the procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorisms, so that dilatory litigants' might put themselves in order and avoid delay. They do not, however, completely stop a Court from taking note of events and circumstances which happen within the time fixed. " The learned Judges then proceeded to given example of a case where, a diligent party came well in time but was set upon and robbed by thieves the day previous and held that the Court in such circumstances, was not powerless to extend it. It comes to this, therefore that where the direction for payment is made in a procedural order to warn dilatory litigants against making default or delay, the Court has power to extend the time. This decision applies to the present case before us where the application under Or. 9, Rule 13 was allowed subject to payment of certain costs within a certain date Apparently the whole idea was to warn the party corning with a prayer for setting aside the decree to be diligent and to make the deposit within the time and in that view of the matter, the order was of a procedural nature and the Court, therefore, was within its rights to extend time in suitable cases. Mr. Dutta, the learned Advocate for the opposite parties, has drawn my attention to an unreported case (2) (C. R. 3145 of 1963) where Banerjee, J. sitting with D. Basu, J. held that where time limit was fixed by the decree, the Court had no jurisdiction after expiry of the period fixed by the decree. This decision is in connection with the decree and the Supreme Court decision has clearly stated that the law laid down by them does not apply to conditional decrees but only to procedural orders, though peremptory which are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. From what I have discussed above, I am of the view that in respect of such procedural orders the Court is not functus officio and in suitable cases the Court has the power to extend the time. In the present case the deposit was made after the expiry of the date during which the payment was to be made and the question that arises is whether this makes any difference. In deciding the case before the Supreme Court the learned Judges held that sections 148 and 149, C. P. C. applied and section 148 clearly provides for enlargement of time even though the period originally fixed or granted may have expired. The delay by one day after expiry of the date fixed for the payment therefore does not make any difference and the Court does no become functus officio in suitable cases. In the present case, however, the courts below have rejected the application on the view that they are functus officio and not entitled to interfere with the order. This decision is based upon an erroneous view of the law and though the learned District Judge hearing the appeal is purported to have dismissed the appeal on merit, he considered the question of extension of the period of limitation only he found in favour of the appellant on this point but refused to interfere on the same ground on which the learned Munsif rejected the petition-namely, that he was functus officio. He did not consider the question on merits but in view of my finding on the question of law, I hold that the appeal should be considered on merits and the order dismissing the appeal is bad. The order passed by the learned District Judge, Hooghly, must therefore be set aside and the appeal be remanded for decision on merits, namely, whether the grounds made out for the delay were sufficient. The application is therefore, allowed and the order dismissing the appeal is set aside and the appeal is sent back to the court below for a decision of the appeal on merits in the light of the observations made in the body of this judgment. The Rule is thus made absolute. Costs will abide the final result.