N.C. Mukherji, J. - (1.) THIS is an application for extension of time to furnish security of Rs. 5,500 in the trial Court in modification of the order passed by this Court on 13th of August 1975. The facts of the case may briefly be stated as follows: The opposite party filed a suit in the City Civil Court at Calcutta for recovery of a sum of Rs. 11,800.00 under Order XXXVII of the Code of Civil Procedure. The petitioners after entering appearance filed an application praying for unconditional leave to defend the suit. The petitioners were allowed to contest the suit only on furnishing security to the extent of Rs. 8,000. It was further ordered that in default of furnishing security the application would stand rejected. Being aggrieved by the aforesaid order, the petitioners moved an application under Section 115 of the Code. On the said application a Rule was issued being Civil Rule No. 2159 of 1974. When the Rule was issued the petitioners were directed to furnish security to the extent of Rs. 2,500. That order was complied with The Rule came up for final disposal on August 13, 1975. On that date the petitioners agreed to furnish security for the balance sum of Rs. 5,500 within two weeks after the Puja Vacation. It was ordered that on furnishing the said security and the same being accepted leave would be granted to the petitioners to contest the suit. In default the application for leave would stand rejected. The said order could not be complied with for the reasons stated in the present application. It has been stated in paragraph 13 of the application that in spite of their best efforts the petitioners could not furnish security and that they have now been able to make necessary arrangements for furnishing security to the extent of Rs. 5,500.
(2.) MR . Biswajit Ghosh, learned Advocate appearing on behalf of the opposite party strongly contends that this application is not maintainable because by order dated August 13, 1975 the Rule was disposed of and that being so, this Court has now become functus officio and cannot pass any order in modification of the order passed on August 13, 1975. In support of his contention Mr. Ghosh refers to a decision reported in, (1949) 53 Cal WN 192 (Pulin Krishna Roy v. Sushil Kumar Dey). In this case it was held by Chatterjee, J. that Where in an application for leave to defend under Order 37 of the Code of Civil Procedure leave was granted upon furnishing security within a specified time and it was provided that in default the application should stand dismissed with costs (sic),"' it was also held that "in default the action was dead and no further extension of time was possible. In rejecting the application for extension of time for furnishing security the learned Judge observed The difficulty I feel is that in a suit under Order 37 an application for leave to defend must be made within 10 days of the service of the writ of summons and the Court has no power to extend this period. But it may be mentioned that in this very case leave was granted to the defendants to defend the suit on condition that security to be furnished within a fortnight to the satisfaction of the Registrar. The application for leave to defend was filed within 10 days of the service of the writ of summons. Mr. S. P. Ray Chowdhury, learned Advocate appearing on behalf of the petitioners, first refers to a decision reported in, (1967) 71 Cal WN 12 (Brojomohan Sabui v. Binapani Sur), It has been held in this case that Where direction for payment made in a procedural order the Court is not functus officio to extend the time if payment is made after the expiry of the time originally fixed. It was however held that Where time is fixed by the decree the Court has no jurisdiction to extend the time after expiry of the period fixed by the decree. In coming to the decision the learned Judge relied on the decision reported in : AIR 1961 SC 882 (Ram Das v. Ganga Das)
(3.) MR . Ray Chowdhury next refers to a decision reported in : AIR 1971 Cal 243 (Sm. Lakshmi Bala Chanak v. Brojendra Nath Pain). In this case it has been held that A Court has power to extend time under Section 148 even after the time fixed by decree or order has expired. In view of the decision reported in : AIR 1961 SC 882 the learned Judge held that : AIR 1965 Cal 354 was not good law.;