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1976 DIGILAW 250 (KER)

CHRISTEENA v. KOLAPPAN

1976-11-23

P.JANAKI AMMA

body1976
Judgment :- 1. The 8th defendant in a suit pending before the Munsiff's Court Neyyattinkara is the revision petitioner. The suit filed by the respondent stood posted for trial on 27-8-1975. On that day, the plaintiff and his counsel were not present and the suit was dismissed for default. An application for restoration of the suit to file was dismissed by the Munsiff C.M.A. 41 of 1976 was filed against the order of dismissal before the District Court, Trivandrum. The first Additional District Judge Trivandrum allowed the appeal on condition that the Plaintiff paid or deposited in court Rs. 30/-each to the counsel of respondents 1 to 3, 5 and 7 in the appeal within a period of 10 days. The order proceeded that if the direction was not complied with, the appeal would stand dismissed. This order was passed on 14 -7-76. The Plaintiff-respondent did not pay the costs within the stipulated period of 10 days. An application was filed by him on 29 71976 for extension of time stating that he was not aware of the directions to pay costs. The petition was taken up on 317 76. The court passed the following order: "Costs of Rs. 30/-paid to Advocate for respondents 1, 2, 3 and 5 by memo dated 317 1976 and costs of Rs. 30/-due to 7th respondent deposited in court as per order dated 317 1976 on I.A. 1863/ 31-7-76". 2. The contention put forward on behalf of the petitioner is that the learned District Judge was not justified in extending the time for payment of the amount. According to the revision petitioner, the order passed in CM.A. 41 of 1976 on 14-7-1976 was a self-working order. By the omission to deposit costs within the period mentioned in the order, the order worked itself out and there was nothing more to be done in connection with thereto. It is further contended that the remedy of the respondent, if at all, was to move for extension of time for deposit before the expiry of the period fixed and pray for a review of the order thereof. Since the respondent did not follow the above procedure, the learned District Judge should not have interfered with the order and extended the time for deposit. 3. Since the respondent did not follow the above procedure, the learned District Judge should not have interfered with the order and extended the time for deposit. 3. The order dated 14 71976 in C. M. A. 41 of 1976 reads: "I would therefore allow this appeal and direct the restoration of the suit to file on condition that the plaintiff-appellant pays or deposits in court an amount of Rs. 30/-each to counsel representing the 7th respondent and respondents 1 to 3 and 5 within 10 days from today and if this direction is not complied with, the appeal will stand dismissed. If costs as directed are paid the suit will be taken up by the court below" Admittedly, the Plaintiff-respondent did not pay or deposit the amount. The effect of the order is that on the omission of the plaintiff to deposit the amount within the period stipulated, the court ceased to have seisin of the case. In other words, as contended by the revision petitioner, by the failure on the part of the plaintiff to deposit the costs within the stipulated period, the order worked itself out and the appeal stood dismissed. Thereafter, the court which disposed of the appeal had nothing to do with the subject-matter of the appeal. It was therefore, irregular on the part or the Additional District Judge to have allowed the payment of the costs The only way in which time could have been extended was by filing either an appeal against the order imposing condition or by praying for a review of the order seeking also further time for deposit. The law on the point is practically settled by the various decisions of this Court as also the Supreme Court. Similar questions arose for consideration in the decisions in Hajara Umma v. Kunhikrishnan (1969 KLT. 800) and Kallyani Amma v. Kunhikrishnan (1971 KLT. 309). In the former case, it is held that S.148 of the Code of Civil Procedure is inapplicable where the non-compliance of the condition would operate automatically and that without further intervention of the court the suit results in a decree and the court becomes functus officio. I f, however, the application for extension is filed before the expiry of the period fixed, it is competent for the court to grant extension under S 148 of the Code of Civil Procedure. Kallyani Amma v. Kunhikrishnan (1971 KLT. I f, however, the application for extension is filed before the expiry of the period fixed, it is competent for the court to grant extension under S 148 of the Code of Civil Procedure. Kallyani Amma v. Kunhikrishnan (1971 KLT. 309), was a case where a suit was remanded by the appellate court on condition that the concerned party should deposit costs within a stipulated time. The order further proceeded that in default of payment of costs within the period, the judgment of the appellate court would stand dismissed with costs. The cost was not deposited within the period fixed. The petitioners moved for extension of time after the due date and also for condoning the delay in making the deposit. The appellate court held that the order worked itself out on the expiry of the period fixed and the petitioners were not entitled to get the time extended. The decision was confirmed in revision by this court. 4. Reliance was placed on the decision in Mahanth Rama Das v. Ganga Das (AIR. 1961 SC. 882 -1961 (3) S.C.R. 763) and it is argued that it is within the competence of the court to extend time and direct a deposit even after the period fixed in the original order. But this case has been referred to and relied upon in Kallyani Amma v. Kunhikrishnan (1971 KLT. 309) already referred to. It is evident from the report that the application for extension of time was filed in the above case before the time fixed by the High Court for the payment of deficit court-fees. Therefore, the decision has no application in a case where no application was filed before the time fixed by the court and the party concerned allowed the time fixed to run out and the order passed worked itself out. In the light of the above rulings and the principles followed therein, the learned District Judge committed an error in permitting the respondent to pay costs after the order passed by him became final on account of the non-deposit of the costs in time. 5. In the light of the above rulings and the principles followed therein, the learned District Judge committed an error in permitting the respondent to pay costs after the order passed by him became final on account of the non-deposit of the costs in time. 5. It is pointed out on behalf of the respondent that the other parties who were awarded costs having accepted the same the suit has been restored and if this court is to hold that the order worked itself oat against the present petitioner there will be conflict of decision which, in the interest of justice, the court should avoid. But the question as to whether the suit will stand restored or not as against the other parties does not come up within the purview of this revision petition as those parties are not on record. As the suit is one for injunction, even if it is dismissed as against the revision petitioner, such dismissal may not affect the relief as against the other persons. However, the point does not arise directly is this revision petition and I am not expressing any final opinion on that matter. 6. In the light of what is stated above, the revision petition will stand allowed. The dismissal of the suit as against the revision petitioner will stand. There will be no order as to costs. Allowed.