SATINDER SUBARWAL Vs. OM PRAKASH

JUDGEMENT

(1.) THIS revision petition is directed against the order of Sub Jude (Municipal Magistrate) Srinagar dated 20 -5 -1976 condening the delay of the respondents in filing the requisite security within time.

(2.) BRIEFLY speaking the facts of the case are that in a suit for decoration with induction, the defendants were permitted by the trial court to raise construction on the land in dispute in accordance with the sanctioned site plan of the Municipal Council. The permission was accorded subject to the condition that the defendants would execute an undertaking to the effect that they would demolish that part of the construction as their own expense which might at the conclusion of the trial or turn out to have over learned into the Suit land. The undertaking had to be furnished within two days from the date of order. This order of the trial court was agitated in appeal before the District Judge who after hearing the appeal upheld the order of the trial court, The appellate court directed the defendants to furnish the undertaking within two days from, the date of the appellate order. It may be stated here that the appeal was disposed of on 26 -4 -1976. The defendants approached the trial court on 30 -4 -1976 and filed me requisite security. An objection was taken by the plaintiff that the trial court could not extend the date granted by the appellate court. The trial court could not modify the order of the Appellate court by exercising its power under section 148 C.P.C. This objection of the plaintiff did not prevail with the trial court. The learned trial judge discountenanced the proposition enunciated before him by the plaintiff He overruled the objection and observed that the delay of two days should be treated to have been condoned. The application filed by the plaintiff was accordingly dismissed. Aggrieved by this order the plaintiff has come up in revision before this court.

(3.) APPEARING for the petitioner, Mr. Zaffar Qureshi, has submitted that the order of condonation of delay passed by the trial judge is erroneous in law inasmuch as the trial court could not sit in judgment over the order passed by the appellate court. The learned appellate court has given a positive direction to the defendants to submit the requisite security within two days and that was upto 28,4.1976. Instead the defendants furnished the security on 30.4.1976. In view of this the security was filed beyond time and therefore could not be said to be in due compliance with the orders of the appellate court. As the condition imposed by the appellate court was not satisfied within the requisite time, therefore the defendants could not raise the construction on the suit land. It is further submitted that in such a situation the trial court had no power to exercise its jurisdiction under section 148 C.P.C and to extend the time granted by appellate court.