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Himachal Pradesh High Court · body

1993 DIGILAW 118 (HP)

KIRPA RAM v. LACHHMAN

1993-07-15

DEVINDER GUPTA

body1993
JUDGMENT Devinder Gupta, J.—The order passed on 11th November, 1991 by the Additional District Judge, Bilaspur allowing the application made by Lachhman, respondent No 1 extending the time for moving an application before the Collector, Ghumarwin is under challenge in this petition. 2. The facts giving rise to the filing of the petition may be stated in brief. One Gajan, the predecessor-in-interest of Lachhman and others, the respondents, owned and possessed the disputed property, which was mortgaged by him for Ks 731 05 through mortgage deed dated 31st December,1i949 with Kirpa Ram, petitioner. The respondents preferred an application before the Collector, Ghumarwin under the provisions of the Himachal Pradesh Redemption of Mortgages Act, 1971 (hereinafter referred to as the Act’) seeking redemption of the mortgage. The Col lector on 28th February, 1977 made an order under the provisions of the Act and ordered the mortgage to be redeemed with direction to the petitioner to deliver back the possession to the respondents. Aggrieved by this decision passed by the Collector, the petitioner Kirpa Ram challenged the order by filing suit in the Court of Sub-Judge, Ghumarwin as per the requirements of section 12 of the Act. 3. Civil Suit No 92 of 1977 preferred by Kirpa Ram was partly decreed. A decree for declaration was granted to the effect that the order passed by the Collector on 28th February, 1977 to the extent stated in the judgment was illegal. The Court, however, declined to grant decree for permanent injunction or in the alternative for possession Against this judgment and decree passed by the trial Court, an appeal was carried by Kirpa Ram, which was heard and decided by the Additional District Judge, Bilaspur on 3rd August, 1989. The order of redemption passed by the Collector was held to be illegal due to non-observance of the procedure prescribed under law. While disposing of the appeal, a direction was made to the effect that since the order of redemption passed by the Collector had been held to be illegal, the natural consequences would be that the petition for redemption preferred by Lachhman and others before Collector, Ghumarwin shall be deemed to be not finally disposed, resultantly it shall be lawful for the Collector to proceed in the matter after complying with the provisions of the Redemption Act. The respondents were directed to apply to the Collector within a reasonable time, which was fixed in the order as 30 days after receipt of the copies of the judgment, and the Collector thereafter was to proceed and dispose of the original petition for redemption afresh. 4. It is the admitted case of the parties that no application was preferred by the respondents before the Collector within a period of 30 days after the date of receipt of the copy of the judgment. Instead an application was made beyond 30 days on 6th October, 1989 before the appeal Court praying for enlarging the time for filing the application before the Collector. 5. Through the impugned order, the Additional District Judge, Bilaspur extended the time holding that in the facts and circumstances, it was permissible for the Court to extend the time. In holding so, the Court took notice of the circumstances, namely, that the application for supply of copy of the judgment was presented by respondent No. 1 on 23rd August, 1989, on which date, copy of the same was made available to him. Application could have been presented on or before 25th September, 1989, but respondent No. 1 kept the copy with him and approached the Counsel only on 4th October, 1989 and it was on 5th October, 1989 that the application was made seeking extension of time Thus, there was only 10 days delay, which in the circumstances was held not to be malafide. While disposing of the application and extending time by another 20 days from the date of supply of the copy of order, the Court made it clear (hat failure to file the application before the Collector within time shall result in dismissal of the petition for redemption as not pressed. It is this order, which is under challenge in this revision. 6. It is this order, which is under challenge in this revision. 6. Tbe learned Counsel for the petitioner has vehemently contended that after the appeal had been disposed of by the Additional District Judge fixing 30 days time within which respondents could have moved an application before the Collector, it ceased to have any control over the proceedings and become functus officio and thereafter it had no jurisdiction to enlarge or extend the time Reliance has been placed on a number of judgments by the learned Counsel in support of his submissions Learned Counsel for the respondents on the other hand contended that the period fixed or granted by the Additional District Judge was not the period of doing any act allowed by the Code of civil Procedure and as such the provisions of section 148 of the Code of Civil Procedure did not apply. The Court was not powerless under its inherent jurisdiction under section !5l of the Code of Civil Procedure to enlarge the time fixed by it to meet the ends of justice and to prevent the abuse of the process of law. 7. In order to appreciate the submissions made by the learned Counsel for the parties, it will be necessary to first quite the relevant portion of the order passed by the appeal Court, while disposing of the appeal and fixing time limit for doing an act of moving an application before the Collector. In the operative part of the judgment, the Court observed 2 "...... . The order of redemption passed by the Collector has been held to be illegal due to non-observance of the prescribed by the Collector. If so, it cannot be said that the application made by the defendants for redemption of the mortgage has been dismissed or completely disposed of One of the consequence of the acceptance of this appeal shall be that the defendants remain without legal adjudication. I would therefore, hold and order that the redemption petition filed by the defendants before the Assistant Collector, Ghumarwin should be deemed to have not been disposed of finally and it shall be lawful for the Collector to proceed with the petition, after complying with the provisions of the Redemption Act. I would therefore, hold and order that the redemption petition filed by the defendants before the Assistant Collector, Ghumarwin should be deemed to have not been disposed of finally and it shall be lawful for the Collector to proceed with the petition, after complying with the provisions of the Redemption Act. It is clarified that the defendants shall apply to the Collector concerned within a reasonable period (within 30 days after the receipt of copy of the judgment, to be precise) and the learned Collector shall thereafter dispose of the original petition for redemption of mortgage afresh in accordance with the provisions of law and having regard to the observations made in this judgment." 8. The purport of the aforementioned observations and directions of the appeal Court is that the order of redemption passed by the Collector was declared to be illegal due to non-observance of the procedure. 9. Section 12 of the Act confers a right on the party aggrieved to challenge the order of Collector by filing a Civil Suit. When Civil Suit was filed by the petitioner, the ultimate declaration was made by the appeal Court, in pursuance to the said provisions, contained in the Act, namely, declaring the order to be illegal. The Court further observed that the result of declaring the order to be illegal will have the effect of revival of the proceedings before the Collector and the said proceedings "shall be deemed to have not been disposed of finally." After having said so, the Court further proceeded to hold that "it shall be lawful for the Collector to proceed with the petition after complying with the provisions of the Redemption Act" In other words, the Court after declaring the order passed by the Collector to be illegal held the proceedings to be pending before the Collector, enabling the Collector to proceed and dispose of the same on merits. These observations the Court made after noticing in the earlier part of the judgment that the respondents herein, had initiated the proceedings before the Collector within the period of limitation and were not at all in fault due to procedure prescribed under law not having been followed by the Collector in making the order and as such they could not be penalised for the same In this background, the Court clarified that the respondents shall apply to the Collector within a reasonable time, which was fixed as 30 days from the date of receipt of the order. It was thereafter that the Collector was to proceed and to dispose of the proceedings pending before him. 10. Admittedly, the time of 30 days fixed by the Court in moving an application before the Collector is not the time for doing an act prescribed or allowed by the Code of Civil Procedure. Neither in the body of the Code, nor the Schedule or Rules made under section 122 and 125 of the Code prescribe or allow doing of this Act Had it been the time fixed or granted by the Court for doing of any of the acts prescribed or allowed by the Code, undoubtedly provisions of section 148 of the Code would apply which proposition has rightly been conceded by the learned Counsel for the respondents. 11. The overriding conditions of the applicability of section 148 of the Code are (a) where a period is fixed or granted by the Court and (b) such period is fixed for doing an act prescribed or allowed by the Code of Civil Procedure. In Mahant Ram Dass v. Ganga Das, AIR 1961 SC 882, the Supreme Court held that the provisions of section l4Softhe Code does not apply to conditional decrees, but will apply to conditional orders in a suit or in an appeal. 12. When a conditional order is passed by a Court fixing time for the performance of an act, it may fall in one of the three categories namely: (a) Where the order provides that in case of default the suit would be decreed or dismissed. (b) Where the order makes no provision as to the consequences due to the default (c) Where the order says that on default, the suit would stand decreed or dismissed. (b) Where the order makes no provision as to the consequences due to the default (c) Where the order says that on default, the suit would stand decreed or dismissed. It is the consensus of various judgments relied upon by the Counsel for the parties that in the first two categories of cases the Court does not cease to have seisin of the case until the final orders are passed after the default. Section 148 of the Coda will clearly apply and the party in default can approach the Court for extension, before the suit is finally disposed of But when final order is passed after the expiry of the time, the Court would have no jurisdiction to extend the time. (See : Gobardhan Singh v. Barsati AIR 1972 Allahabad 246 ; Budhulal Kasturchand v. Chhotelal and others, AIR 1977 Madhya Pradesh 1 ;Narasingha Charan Swain v, Jairam Jena and others, AIR l982 Orissa 75; Suraj Singh y, Rajnarain Lal and another, AIR 1984 Patna 155 and Smt Parmeshwari v. Naurata, AIR 1984 Punjab and Haryana 342). 13. In so far as the third category of cases in Mahant Ram Das’s case (supra), the Supreme Court held that such type of orders where there is stipulation on default, the suit would stand decreed or dismissed that "such procedural orders though pre-emptory (conditional decrees apart) are in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay." They do not, however, completely estop the court from taking note of events and circumstances, which happen within the time fixed The jurisdiction to extend the time fixed exists under section 148 of the Code. 14. It being a case, where time is not fixed for doing any act prescribed or allowed by the Code, section 148 of the Act accordingly would not apply. The only jurisdiction which can be said to be vested would be under section 151 of the Code of Civil Procedure, namely, the inherent powers of the Court. 15. One of the first and inherent duty of all the Courts is to take care that the acts of the Court does no injury to any of the suitors. This is founded on the legal maxim "actus curiae neminem gravavit’ namely, the act of the Court prejudices none. The Code is not exhaustive. 15. One of the first and inherent duty of all the Courts is to take care that the acts of the Court does no injury to any of the suitors. This is founded on the legal maxim "actus curiae neminem gravavit’ namely, the act of the Court prejudices none. The Code is not exhaustive. The Courts have, therefore, in many cases where the circumstances require it to act upon the assumption of the possession of inherent powers to act ex-debito justitiae and to do that real and substantial justice for the administration of which aloae it exists Section 151 of the Code has not conferred any jurisdiction on the court but has saved the inherent powers of the Court and this inherent power in the Courts to do justice is by virtue of its duty to do justice between the parties before it. Inherent jurisdiction of the Court can be invoked only where there is no clear provisions in the Code. 16. The lower Appellate Court, after the period which it had fixed, as the reasonable time within, which the respondents were to approach the Collector for reviving the file, extended the same, after noticing the facts and circumstances. In the judgment and decree while disposing of the appeal, it was not mentioned that the respondents will be precluded from prosecuting their remedy before the Collector in case they fail to approach the Collector within 30 days with an application. In fact, the court by declaring the order passed by the Collector to be illegal further held that the proceedings before the Collector will be deemed to be pending and will be deemed not to have been disposed of the proceedings finally. Even if no time was fixed by the appeal Court in the order, as the one, within which respondents were to approach the Collector, the Collector was legally bound to proceed of its own and dispose of the petition for redemption in accordance with law. It is a legal remedy, which the respondents were to prosecute, which they had originally taken out within the period of limitation. For do fault on their part, the order passed by the Collector was declared illegal, but to nor-observance of some procedural formalities. It is a legal remedy, which the respondents were to prosecute, which they had originally taken out within the period of limitation. For do fault on their part, the order passed by the Collector was declared illegal, but to nor-observance of some procedural formalities. Neither any time was required to be fixed in the decree by the Appeal Court, nor it was a conditional decree As such, in case the appeal Court found that interest of justice demand the extending of time, it cannot be said to have committed any material irregularity in exercise of its inherent jurisdiction 17. In view of the above, I do not find any ground to interfere with the order passed by the lower Appellate Court and in view of the admitted position, it is not necessary to elaborately discuss the authorities stated by Mr. Jishtu, on the point that under section 148, the Court will have no jurisdiction to extend time once it has become functus officio since admittedly, section 148 of the Code is not applicable to the facts and circumstances of the case. 18. Resultantly, the revision petition is dismissed and the interim stay is vacated, leaving the parties to bear their own costs. Revision petition dismissed.