L P JAIN Vs. NANDAKUMAR R TALIWALLA

JUDGEMENT

(1.) THIS appeal is filed by the defendant in a suit being suit No. 1588 of 1954 against the order passed by the learned City Civil Court Judge on the chamber summons which wss taken out by the defendant on 26th February 1958 dismissing it with costs.

(2.) IN the suit which was filed by the plaintiff respondent against the defendant an ex parte decree was passed on 18th November 1957. The defendant thereafter took out a notice of motion for setting aside the ex parte decree on the ground that he was unable for sufficient reasons to attend the hearing of the case in the circumstances set out in the affidavit in support of the notice of motion. That notice of motion was disposed of by the City Civil Court on 29th January 1958, and the order that was passed on the notice of motion by the learned Judge of that Court was that on the defendant depositing Rs. 1,500 within four weeks and on paying a sum of Rs. 100 being the costs thrown away on 18th November 1957 and a sum of Rs. 75, being the costs of the notice of motion within four weeks to the plaintiff the ex parte decree be set aside and that it the said amount was not deposited and the said amounts were not paid the notice of ruction was to stand dismissed with costs. The order further stated that if the said amount was deposited and the amount of costs was paid to the plaintiff the suit was to he on some board on 10th March 1958 peremptorily.

(3.) IT appears that the defendant was not able to carry out the terms and conditions of that order within the period specified therein. On 26th February 1958, however, the defendant took out a chamber summons praying that the lime for making the deposit and for the payment of the costs be extended up to 15th April 1958. That chamber summons was heard by the same learned Judge who had heard the notice of motion on 13th March 1958 and was dismissed inasmuch as the learned Judge was of the view that in view of the terms of the order he had passed on the notice of motion he was functus officio and no longer seized of the matter as from 29th January 195s and that, therefore, he did not have jurisdiction to entertain any application for extension of time for the payment of the deposit and costs directed by bis order. It is against that order that the defendant has filed the present appeal.