CHANDRA GOUNDAN Vs. PALANIAPPA GOUNDAN

JUDGEMENT

(1.) A decree was passed ex parte against the parties in Original Suit No. 533 of 1915 by the District Munsif, Erode, and they applied to get it set aside under Order IX, rule 13. The Munsif, after hearing the parties, passed an order stating, I shall restore the suit if the defendants pay into Court the entire costs of the plaintiff except the institution fee, and also the respondents costs of this application on or before the 7th April 1916." The costs were not so paid, but on the 1st April petitioners applied again to have the suit restored to the file and reheard on the merits, stating that they were ready and willing to pay the costs into Court as ordered and that their failure to do so in time was due to their not having known of the order in time. The Munsif has treated this application as in substance one for extension of time and though he found that the case was one eminently fit for granting an extension, he held he had no power in law to grant any extension and dismissed the petition. The revision petition to this Court is against this dismissal.

(2.) Even under the old Code their Lordships of the Privy Council held in a case under Section 549 of that Code that the Court had power, apparently an inherent one, to grant extension of time to famish security on application made for it, whether after or before the expiry of the time first) fixed. See Badri Narain v. Sheo Koer 17 C. 512: 17 I. A. 1: 5 Sar. P. C. J. 498: 8 Ind. Dec. (n. s.) 881. They held that the power existed in spite of the words. in the section, "the Court shall reject the appeal." The Allahabad High Court has applied this view to Section. 10, Clause 19 A. 240: A. W. N. (1897) 40: 9 Ind. Dec. (n. s.) 158, of the Court Fees Act in Chunni Lal v. Ajudhia Prasad 19 A. 240: A. W. N. (1897) 40: 9 Ind. Dec. (n. s.) 158, and this Court has followed that ruling in Subrahmanyam v. Ramasawmy 9 M. L. J: 348. It follows, therefore, that even if Order IX, rule 13, stood by itself, applying the same principle it must be held the Court had power to grant the extension in the present case; and Section 151 of the Code expressly saves such inherent powers.

(3.) The new Code has, however, enacted Section 148, which expressly gives powers to Courts to enlarge from time to time the period originally fixed for the doing of any act prescribed or allowed by the Code. There can be no doubt that the act that the defendants had been directed to do in the present case, viz., to pay the costs into Court, is an act allowed by the Code, for rule 13 says that the Court may impose such terms as to costs, payment into Court or otherwise as it thinks fit. I am of opinion that the words of rule 13 should not be on construed too narrowly and that they are wide enough to cover the present case. The same view was taken in the case of Jagarnath Sahi v. Kamta Prashad 23 Ind. Cas. 138: 36 A. 77: 12 A. L. J. 38, in similar circumstances. The case in Moideen Kuppai v. Ponnuswamy Pillai 26 Ind. Cas. 63: 16 M. L. T. 430: 1 L. W. 882, cited for the respondents is an entirely different one, as the time sought to be extended there was the time fixed in a conditional decree for delivery of property on payment of a sum of money within a certain time. The condition or the act required was one which bad nothing to do with the old Code but was prescribed purely by the decree and their Lordships held that Section 148 did not apply. The present case is in no way analogous to it. A similar case in Suranjan Singh v. Rambahal Lal (6) was distinguished in the same way by the learned Judges in Jagarnath Sahi v. Kamta Prashad 23 Ind. Cas. 138: 36 A. 77: 12 A. L. J. 38, the ease above cited.