ABDUL LATIF Vs. AKIL ZAMAN

JUDGEMENT

(1.) THE plaintiff petitioner in this Civil Revision challenges the order dt. 30 -5 -80 passed by the Sadar Munsiff, Gauhati in Misc. (J) case No. 13 of 1980 on the defendant -respondent's application for revival of Title Suit No, 44 of 1979, requiring him to deposit cost of Rs. 250/ - by 7 -6 -1980; and the order dt. 3 -7 -1980 vacating the earlier order of dismissal of the Misc. (J) case.

(2.) THE plaintiff -petitioner's Title Suit No. 44 of 1979 was decreed ex parte on 25 -2 -80. The Misc. (J) case No, 13 of 1980 was registered upon the application by the defendant -respondent under Order 9 Rule 13 for setting aside the ex parte decree. By order dt. 30 -5 -80 the defendant respondent was required to deposit the cost of Rs. 250/ - by 7 -6 -80 when only final order would be passed. The defendant -respondent failed to do so, and on 10 -8 -80 he filed an application praying for extension of time to deposit the amount. It appears that no decisive order was passed on this application. On 3 -7 -80 the defendant -respondent, instead of depositing the amount, filed an application for reduction of the cost amount from Rs. 250/ - to Rs. 100/ -. The Court refused to do so and dismissed the Misc, (J) case No. 13 of 1980 for failure to comply with the order dt. 30 -5 -80. Later, on the same day, the defendant -respondent filed another application stating that he deposited the cost of Rs. 250/ -, and praying for revival of the case, whereupon the Court passed the second impugned order vacating his earlier order of dismissal of the Misc. (J) case, and ordering that the case should proceed; and fixing 11 -7 -80 for stamps in the main suit. Hence this petition.

(3.) MR . A.K. Phukan, the learned counsel appearing for the defendant -respondent on the other hand submits that there is no infirmity in the order dt. 30 -5 -80 on the prayer for revival requiring the defendant -respondent to deposit cost of Rs. 250/ - by 7 -6 -80 when only necessary order would follow. The defendant -respondent in his application dt. 10 -6 -80 prayed for extension of time and that application was ordered to be put up on 16 -6 -80 which meant that the prayer for extension was entertained though no order was passed. His next application dt. 3 -7 -80 for reduction of the cost from Rs. 250/ - to Rs. 100/ - was no doubt rejected, but that did not disentitle him to deposit the amount of Rs. 250/ - and he having so deposited the amount on 3 -7 -80 the Court was justified in accepting the amount as per order dt. 30 -5 -80 and in vacating its earlier dismissal order. Counsel submits that the conduct of the Court showed that the time was extended by implication; and hence this petition is not maintainable.