HAJARA UMMA Vs. MUHAMMED KUNHI HAJI
LAWS(KER)-1968-7-22
HIGH COURT OF KERALA
Decided on July 01,1968

HAJARA UMMA Appellant
VERSUS
MUHAMMED KUNHI HAJI Respondents

JUDGEMENT

- (1.) The question for decision in this revision is whether the court has jurisdiction to review a conditional order passed on a prior occasion which on non compliance of the condition had worked itself out. The conditional order formed part of the judgment of the Addl. District Judge of Tellicherry in A. S. 524 of 1965. The condition was embodied in the judgment in the following terms: "Though there are considerable laches on the part of the appellants, in the interests of justice, I think, they should be given one chance for evidence provided they deposit in the lower court Rs. 75/- batta to takeout a commission to ascertain profits derivable from the land & Rs. 35/- towards the costs of the 6th claimant irrespective of the final result of the proceedings within 2 weeks of the receipt of this order falling which the order of the lower court will stand confirmed with the modifications mentioned below. No further time should be given on any account." The order was passed on the 8th of August 1967. The deposit was not made as directed, and thereafter a petition was filed for review under O. 47 R.1 CPC. by the appellants. (Respondents 1 to 3). On that petition the successor Judge on 23rd September 1967 passed the following order: "Heard. Counsel submits that by some oversight ha could not deposit the amount on 30-8-1967 before the lower court. The petition is opposed. In the interests of justice this petition is allowed on condition that the batta is deposited on 25-9-1967 itself and Rs. 25/-is paid to the opposite party as day costs". The jurisdiction of the court to pass this order is challenged before me.
(2.) I think the learned Judge is in error in having extended the time for deposit of the batta. Neither under S.148 CPC. nor under O. 47 R.1 is the court competent to interfere with the order first passed. S.148 is clearly inapplicable where the non compliance of the condition would operate automatically and without further intervention of the court the suit results in a decree and the court becomes "functus officio." "Thus, if the order is that security shall be given within a month "otherwise the petition shall stand dismissed"; or extra court fee shall be paid within a week "otherwise the suit shall stand dismissed"; or "the appeal shall stand dismissed" or the decree shall be a nullity; or the decretal amount be paid within ten days, otherwise the application shall stand dismissed; or that the application to set aside an ex parte decree "will stand dismissed" if costs were not paid within a specified time; or that if the balance purchase money was not paid within a given time the "suit shall stand dismissed"; or that an amendment application should stand dismissed if costs are not paid within a particular date, no extension can be granted under S.148" (Vide Mulla's CPC. 13th Edn. Vol. 1 page 568).
(3.) The Calcutta High Court seems to have taken a different view; but the preponderance of judicial opinion is in favour of the former view. If, however, the application for extension is filed before the expiry of the period fixed, the court can grant extension under S.148 CPC. The position is not improved if instead of S.148 CPC. remedy is sought under O.47 R.1. In instances like the present one, where a peremptory order directing the deposit within a specified time is passed and is further directed that in the case of non compliance, an adverse order would follow, the court will have no power at all to interfere on the ground that events that had transpired subsequent to the passing of the order are compelling to take a lenient view in the matter. On non compliance with the condition, the order that follows will have to be presumed to be an order passed on the date when the condition itself was imposed. Therefore, there cannot be any force in the contention that on account of the subsequent events the party was disabled from complying with the condition. 'Where a peremptory order directing that unless the deficit court fee was paid by a certain date the memorandum of appeal would automatically stand dismissed and there was such default, it was held that the date of the decree would be the date of the peremptory order and not the date within which the deficit court fee was to be made good and therefore, no review would lie on the ground that the nonpayment of the deficit court fee was due to the failure of the lawyer to whom the money was paid by the appellant within time" (Vide Tiwari Tiwari v. Jagadish Singh) AIR 1957 Patna 430 FB). In that case (AIR 1957 Pat. 430) it was argued on behalf of the petitioner that there was proper ground for review under O.47 R.1 because the petitioners had sent the required money on the 10th October, 1954 and they were not responsible for the failure of the lawyer to deposit the amount in the High Court, because he had gone away to some other place. The learned Judge observed: "We are unable to accept the argument of learned counsel as correct. The peremptory order of Misra, J. was made on the 22nd of September 1954, and that is the date of the decree within the meaning of S.2(2) read with O.7 R.11 Code of Civil Procedure. We do not accept the argument of learned counsel that the date of the decree in this case is the 21st October 1954, when the second appeal stood dismissed because of the default on the part of the petitioners to pay the deficit court fee. If that view is correct, the principle of the decision in AIR 1956 Pat. 20, applies to this case. It was laid down in that case that the ground for review under O.47 R.1 must be something which existed on the date of the decision or decree and that the rule did not authorise the review of a decree or decision which was right when it was made on the ground of the happening of some subsequent event. It was further held in that case that an application for review of a decree on the ground that the applicant was taken ill subsequent to the date of that decree would not lie. This view is supported by a decision of the Privy Council in Kotagiri Venkata Subbamma Rao v. Vellanki Venkatarama Rao, 27 Ind. Ap. 197 at p. 205. In our opinion the reasoning of the decision in AIR 1956 Pat. 20 is right. Applying that reasoning we hold that the petitioners in the present case have not made out any ground for review under the provisions of O.47 R.1, Code of Civil Procedure".;


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