- (1.)LEGAL heirs of defendant in O.S. No. 22 of 1997 on the file of District Munsif Court, Vilathikulam are the revision petitioners herein, Suit filed by plaintiffs was one for recovery of possession with arrears of rent. In the plaint it is alleged that originally defendant was tenant who agreed to pay Rs. 625 per month as rent and defendant defaulted in paying the same and he is liable to be evicted. Notice was issued terminating tenancy.
(2.)IN the written statement filed by deceased defendant he admitted that he has taken only vacant site and put up construction 35 years prior to the
Institution of the suit, but he agreed that he is liable to pay Rs. 625 as monthly rent. He also questioned the validity of the notice. He prayed for dismissal of the suit.

Case was posted in the list and since defendant did not appear, ex parte decree was passed.

Defendant himself filed an application to set aside the ex parte decree and pending application he died. Petitioners are impleaded as additional petitioners. An order was passed allowing the application on condition that petitioners should pay Rs. 150 towards cost on or before 7. 6. 1999, failing which it was directed that the application shall stands dismissed. Petitioners could not pay the amount and they moved another application I. A. No. 126 of 1999 to extend the time by one month for paying the amount. That application was filed on 20. 6. 1999. By the impugned order accepting the objection of plaintiffs, the same was dismissed. The said order is under challenge in this revision petition.

Notice of motion was ordered and respondents also entered appearance and I heard the learned counsel on both sides.

(3.)ONE of the main contentions raised by learned counsel for petitioners is that the application is filed for extension of time and the question whether petitioners are entitled to have the time extended or not is not properly considered by court below. According to learned counsel for petitioners, lower court only held that since cost is not paid in time application was dismissed. Said approach of lower court is criticised by learned counsel for petitioners.
As against this contention, learned counsel for respondents submitted that it is only on the basis of consent given by both parties ex parte decree was sought to be set aside. Being an order by consent, there is no scope for extension of time unless both parties agree for extension of time. At any rate, court also become functus officio in extending time. Finally it is argued that no sufficient cause is made out for extension of time. Counsel submitted that regarding this argument there is finding of fact entered by lower court and the same is not liable to be interfered in revision.

Regarding power for extension of time, I do not think that the submission of learned counsel for respondents could be accepted. From the copy of progress diary, the correctness of which is not disputed by respondents and who relied on the same it could be seen that on 16. 4. 1999 court passed the following order. "In view of the endorsement made by the counsel for both parties the petition will be allowed on payment of cost of Rs. 150 to be paid by the petitioner/plaintiff to the respondents on or before 7. 6. 99, failing which this petition shall stand dismissed: Call on 8. 6. 99. " On.8. 6. 1999 Court was not sitting and the matter was adjourned by notification to 23. 6. 1999. On 23. 6. 1999 also case was adjourned to 28. 6. 1999 since the Judge was not sitting. On 28. 6. 1999 an application under section 148 of Code of Civil Procedure was filed for extension of time and the matter was taken up on 30. 6. 1999. From 30. 6. 1999, the matter was adjourned to 2. 7. 1999 and on 2. 7. 1999 trial court held that I.A No. 126 of 1999 was dismissed and hence the application under Order 9, Rule 13 is also dismissed as cost was not paid.