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2010 DIGILAW 626 (AP)

P. Hari v. Anjuru Yellappa

2010-07-16

V.ESWARAIAH

body2010
JUDGMENT : This Civil Revision Petition is directed against the order dated 01.10.2009 in I.A.No.888 of 2009 in I.A.No.53 of 2008 in A.S.No.6 of 2008 on the file of the V Additional District Judge, Tirupathi, purported to have been filed under Section 148 read with Section 151 of the Code of Civil Procedure, 1908 (herein after referred to as – ‘the Code’) with a prayer to enlarge the time granted to deposit the suit costs up to the date of deposit by accepting the treasury Challan No.19590 dated 15.07.2009. Heard the learned counsel for both sides. Perused the material available on record. Petitioners herein are the defendants in O.S.No.232 of 2003 on the file of the Principal Junior Civil Judge, Tirupathi, which was filed by the respondent herein for mandatory injunction. The said suit was decreed on 13.08.2007. Assailing the same, the petitioners herein have preferred appeal in A.S.No.6 of 2008 in the lower appellate Court and also filed I.A.No.53 of 2008 seeking to grant stay of operation of the decree and judgment passed by the trial Court. The lower appellate Court, by order dated 23.01.2008, granted stay on condition of the appellants herein depositing the suit costs by 27.02.2008. Admittedly, the suit costs were not deposited within the time prescribed. However, the suit costs were deposited in the treasury vide treasury Challan No.19590 dated 15.07.2009 and the present application was filed seeking enlargement of the time granted for deposit of the suit costs up to the date of such deposit. The lower appellate Court, relying on the judgment of P.NASER SAHEB vs. P. NABI SAHEB AIR 1957 AP 780 wherein it was held that if any period is fixed or granted by the Court for doing of any act prescribed or allowed by the Code, the Court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may have expired, but the period prescribed under the Section can be extended only during the currency of the previous order and that once an order has become defunct, there arises no question of extending the time made under that order; dismissed the said application on the ground that there was the delay of one year five months and the appellants have also not filed any application before the expiry of the stipulated date seeking to enlarge the time. Section 148 of the Code provides that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period not exceeding thirty days in total even though the period originally fixed or granted may have expired. In the instant case, the lower appellate Court granted stay subject to the deposit of suit costs by 27.02.2008 but there was no default clause. However, if the suit costs are not deposited, it is always open for the plaintiff to execute the decree after expiry of the time fixed. There is no time limit prescribed under any of the provisions of the Code for deposit of suit costs but it is only the Court that fixed the time. Therefore, I am of the opinion that Section 148 of C.P.C. has no application to the case on hand. So, in the given circumstances, for extension of time by exercising the inherent powers, the relevant provision is Section 151 of the Code. The learned counsel for the petitioner relying on the judgment of the Apex Court in the case of SALEM ADVOCATES BAR ASSOCIATION, TAMILNADU vs. UNION OF INDIA AIR 2005 SUPREME COURT 3353(1) = 2005 (5) SCJ 519 = 2005 (6) ALT 19.1 (DNAC) submits that the upper time limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. Paragraph No.45 of the said judgment reads as under. “The amendment made in Section 148 affects the power of the Court to enlarge time that may have been fixed or granted by the Court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the Court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the section would lead to absurdity. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the Court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of Court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to fully operate. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for the reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the Court for performance of an act prescribed or allowed by the Court.” So, in view thereof, the Court can extend the time for deposit of suit costs by exercising the inherent powers under Section 151 of the Code. Therefore, having regarding to the fact that the suit costs were already deposited, the Civil Revision Petition is allowed and the order under revision is set aside and, consequently, the application filed by the petitioners in the lower appellate Court stands allowed. As the appeal suit is of the year 2008, the lower appellate Court shall endeavour to dispose of the same as expeditiously as possible on priority basis. The respondent/plaintiff shall be permitted to withdraw the suit costs without furnishing any security. There shall be no order as to costs.