(BURRABATHULA) NARASIMHALU Vs. DONGA RAMAYYA

JUDGEMENT

(1.) The facts of the ease appear in the judgment of the lower appellate Court. The present respondent (plaintiff) filed a partition suit seeking to set aside certain alienations. We are now concerned only with item 3 in the suit. There was a preliminary decree that this alienation should be set aside on his depositing the sum of Rs. 450 in Court as compensation within six months from the date of the appellate decree dated 14 October 1925. The matter was taken on second appeal to the High Court. The deposit was made on 15 April 1926. When the plaintiff asked for a final decree the defendants, who were appellants in the High Court, got a stay on condition of furnishing security for mesne profits for four years, and on this the High Court passed an order that the plaintiff should be at liberty to withdraw his deposit. After some delay the defendants gave security and the plaintiff's deposit was attached by certain creditors. The final decree of the High Court as regards this item 3 was as follows: (2) That item 3 of the plaint schedule covered by Ex. B be divided into two equal shares and that the plaintiffs be put in possession of one such share on condition of the depositing of Rs. 450 into Court; and (8) that in case the amount is not so deposited, the plaintiff's suit, so far as it relates to the said item 3, will stand dismissed.

(2.) On this the District Munsif's Court on 19 April 1928 gave the plaintiff time to make the deposit. The plaintiff did not make the deposit. The suit was therefore dismissed as regards item 3. The plaintiff then appealed against the said order that he should make the deposit and also against the order dismissing the suit. The lower appellate Court dismissed both these appeals holding that the omission to make the deposit was not accidental but deliberate1 and that Section 148 would not be applicable. But under Section 151 the lower appellate Court allowed the plaintiff four weeks more time to make the deposit. With this modification the final decree was confirmed in other respects. Against this extension of time defendants 4 to 6, 7 to 10 and 12 have appealed. The argument is twofold, that since the decree provided that the suit will stand dismissed if the money was not deposited the Court cannot alter its own decree, and, secondly, that the plaintiff having deliberately refused to make the deposit and having challenged the correctness of the order dismissing the suit for default is not an occasion when the Court is entitled to use its discretion under Section 151. It is sought to be argued for the other side that when the High Court passed its decree it was referring back to the state of things at the time of the preliminary decree. I cannot accept this contention for a moment.

(3.) The High Court must have known the orders which it had passed by which the plaintiff had been allowed to withdraw the deposit which he had made. Paras. 2 and 3 quoted above must be read as having been drawn up with full knowledge that the High Court had already dealt with the matter and therefore these paragraphs can only mean that the plaintiff must deposit Rs. 450 into Court, and if it is not so deposited the plaintiff's suit, so far as it related r to item 3, will stand dismissed. It might certainly be an arguable point whether the District Munsif had power to fix the period within which it should be deposited or whether it was the High Court alone which could do this. I agree that the High Court having allowed the plaintiff to withdraw his deposit plaintiff was at the time of the decree entitled to be put back into the position which he was in when he had made the deposit, except that he had now to replace that deposit. The plaintiff himself refused to replace the deposit when he was given time to do so. He challenged the correctness of the order of the District Munsif that he should replace the deposit, and fought the matter out in two appeals. He failed in those two appeals and he has not preferred a second appeal here in either as. Therefore it must be held that the order of the District Munsif that he should pay the deposit was legal and also that the order dismissing the suit for want of payment was also legal. It is unless in the face of the High Court's decree to argue that the District Munsif's Court had no power to order the dismissal of the suit if the amount was not deposited. It has to be considered whether under these circumstances the exercise of any discretion in favour of the plaintiff can be called a judicial exercise of discretion.