B.L.Yadav, J. - (1.) This is the defendant's First Appeal From Order against the judgment and order dated 23.7.90 passed by the Addl. District Judge, Ballia, allowing the appeal against the judgment and order dated 18.4.88 passed by the Munsif West, Ballia dismissing the suit mainly on the ground that the cost of which was directed to be deposited in the earlier suit was not deposited. In appeal it has been held that the' application 149-C2 was moved by the plaintiff at a belated stage, nevertheless the same was allowed and the time was extended in view of the provisions of Section 148 of the Code of Civil Procedure (for short the Code).
(2.) It appears that the plaintiff has earlier filed a suit for mandatory injunction for removing constructions from the land in dispute and a relief for permanent injunction was also claimed. That suit was ultimately withdrawn by order dated 24.7.1981, a true copy of which has been filed as Annexure-3 to the affidavit accompanying the stay application. The terms under that order were that the plaintiff respondents were permitted to withdraw the suit, but they were to pay cost to the defendant appellant and consequently the suit was withdrawn. A subsequent suit was filed and in that suit issues were framed. A point was raised by the defendant appellant that the cost in the earlier suit was not deposited, hence the subsequent suit was barred under order 23, rule 3 (6) of the Code,. The trial court dismissed the suit holding that as the cost was not deposited, hence the suit was dismissed. Against that order appeal was preferred and the same has been allowed and the suit has been remanded to the trial court for giving an opportunity to the appellant to deposit the cost as imposed vide order dated 24.7.81.
(3.) Learned counsel for the appellants urged that by order dated 24.7.1981 no time was granted, hence the respondents must have deposited the amount as directed under order 23, Rule 3 (b) of the Code within a reasonable period: and that no application for depositing the amount or for fixation of the same was filed, hence the cost could not be deposited by the plaintiff and the appellate court erred in directing the plaintiff respondents to deposit the cost and also erred in extending time under Section 148 of the Code. Reliance was paced on M/s. Kokan Trading Co. v. Suresh and others, AIR 1986 SC 1009 .;