Back
Calcutta High Court
S.N.NIYOGI
Tarapada Sarkar - Appellant
Versus
Nepal Gazi - Respondent
C.R. No. 4429 of 1960
Decided On : 05/24/1963
CIVIL PROCEDURE CODE - O. 9, R. 13 - EX PARTE DECREE - SETTING ASIDE - EXTENSION OF TIME FOR DEPOSIT OF COSTS - JURISDICTION OF COURT - S. 148 - DEFAULT CLAUSE - EFFECT.
Fact of the Case:
The plaintiff filed a suit for recovery of money against the defendants. The suit was decreed ex parte on 1-9-1959. The defendants applied for setting aside the ex parte decree under O. 9, R. 13 of the Code of Civil Procedure. The Court passed an order on 21-5-1960 setting aside the ex parte decree and restoring the suit to file on condition that the defendants pay costs of Rs. 16 by 7-6-1960. The defendants failed to pay the costs by the date fixed. On 7-6-1960, they filed a petition for extension of time by three days more for making the payment. However, that petition was not moved before the Court. On 8-6-1960, they filed another petition showing cause and for condoning the delay to deposit the cost. The Court condoned the delay and accepted the cost so deposited, by his order No. 48, dated 30-7-1960.
Finding of the Court:
The Court held that the order passed by the learned Munsif restoring a case dismissed for default on condition of the payment of a reasonable amount of cost to the opposite parties within in time fixed by the Court, is an order contemplated under O. 9, R. 13 of the Code of Civil Procedure and is, therefore, quite a legal and valid order. The Court further held that the effect of the order would be that as soon as the time fixed in the order expired and no payment or deposit was made as directed, the application would stand dismissed. The Court also held that the preponderance of view held by different Courts is that thereafter the Court ceases to have any jurisdiction to extend the time thus limited by the order as the action is dead.
Issues: Whether the Court had jurisdiction to extend the time for deposit of costs after the failure of the defendants to deposit the cost within the time fixed by the Court.
Ratio Decidendi: The Court held that the order passed by the learned Munsif restoring a case dismissed for default on condition of the payment of a reasonable amount of cost to the opposite parties within in time fixed by the Court, is an order contemplated under O. 9, R. 13 of the Code of Civil Procedure and is, therefore, quite a legal and valid order. The Court further held that the effect of the order would be that as soon as the time fixed in the order expired and no payment or deposit was made as directed, the application would stand dismissed. The Court also held that the preponderance of view held by different Courts is that thereafter the Court ceases to have any jurisdiction to extend the time thus limited by the order as the action is dead.
Final Decision: The Rule is made absolute with costs. The impugned orders, dated 30-7-1960 be set aside. Hearing fee is assessed at one go mohur.
ORDER : The petitioner Tarapada Sarkar instituted Money Suit No. 95 of 1955 against defendant No. 1 Nepal Gazi and the Chakraborties (Defendants Nos. 2 and 3), who are the opposite parties in this case, in the fourth Court of Munsif at Alipore for recovery of certain sum of money OB account of his share of produce of some land in respect of the year 1861 B.S. This suit was contested by the defendants by filing a joint written statement. The date of peremptory hearing of the suit was fixed on 1-9-1959 and as the defendants failed to attend the Court or take any steps on that date, the suit was eventually decreed ex parte. Thereafter the defendants applied for setting aside the ex parte decree by filing an application under the provisions of O. 9; R. 13 of the Code of Civil Procedure and the case was numbered as Misc. J. Case No. 192 of 1959. The above case was heard analogously with Misc. J. Case No. 193 of 1959, which arose out of a similar application filed under O. 9, R. 13 of the Civil Procedure Code for setting aside the ex parte decree passed in Money Suit No. 135 of 1955 of the same Court. Besides the Chakraborties, Nuro Molla and Tarijaddi Molla, respectively, figured as defendant Nos. 1 and 2 in that suit, which was also instituted by the present plaintiff and which was also decreed ex parte on 1-9-1958 under similar circumstances. After hearing the parties in both the oases the Court passed the following order on 21-5-1960 :
"That the two Misc. cases be allowed on contest without cost. The ex parte orders passed on 1-9-1959 in both the original suits are hereby set aside. The two original suits, e.g., M.S. 130/55 and 95/55 will be restored to file on the ptrs' paying cost of Rs. 16 by 7-6-1960. In default the two Misc. cases shall stand dismissed."
2. No money was either paid to the plaintiff or deposited in the Court as directed, by 7-6-1960. On 7-6-1960 a petition for an extension of time by three days more for making the payment was filed in the Misc. J. Case No. 192 of 1959. However, that petition was not moved before the Court and on 8-6-1960 another petition showing cause and for condoning the delay to deposit the cost was filed by the defendants in that case. They also deposited the cost as ordered, in the Court on 8-6-1960. The plaintiff opposed the prayer of the defendants in this respect and after hearing both the sides the Court condoned the delay and accepted the cost so deposited, by his order No. 48, dated 30-7-1960. The Court then passed the following further order :
"Order No. 40, dated 30-7-1960.
In view of order No. 42, dated 21-5-1960 and No. 48, dated 30-7-1960 the Misc. case is allowed on contest and the ex parte order passed on 1-9-1959 is hereby set aside and the...... suit is restored to its original number and file and will now proceed. Parties to take steps in M.S. 95/55 by 18-8-1960."
A similar order was also passed in respect of Money Suit No. 135 of 1955.
3. Being aggrieved by the above order No. 48, dated 30-7-1960 and No. 49, dated 30-7-1960 the petitioner has filed this application under S. 115 of the Code of Civil Procedure.
4. It has been argued by the learned Advocate for the petitioner that no extension of time for making deposit could be given by the learned Munsif under S. 148 of the Code of Civil Procedure after the failure of the opposite parties to deposit the cost within the time fixed by the Court. The effect of the order was that in case of default of payment of cost by 7-6-1960 the application would stand dismissed. It has further been contended that when a decree or final order is passed the Court ceases to have any jurisdiction In the matter as the action is dead. In support of his contention the petitioner has relied on Gaya Din v. Lalta Prasad, AIR 1936 All 477; Kshetra Mohan Ghosy v. Gour Mohan Kapali, 37 Cal WN 878 : (AIR 1934 Cal 21); Mahomed Asraf AH v. Nabijan Bibl, 48 Cal WN 417 : (AIR 1939 Cal 581).
5. Under S. 148 of the Civil Procedure Code where any time is f
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
