Petition ought to have been treated as one under Sec.148 and should have been allowed.

1. The plaintiff in the suit in O.S.No.392 of 1989 on the file of the Court of Principal District Munsif, Ulundurpet is the petitioner in this civil revision petition and he has filed this revision against the fair and decretal order dated 1.4.1997 made in I.A. No.1341 of 1995 in I.A.No.1597 of 1994 in O.S.No.392 of 1989.

2. When the above matter was taken up for consideration, in the presence of both the learned counsel, on perusal of the materials placed on record and upon hearing the learned counsel for both, what comes to be known is that I.A.No.1341 of 1995 had been filed before the lower court under Section 151, CPC praying to restore the petition filed under Order 9, Rule 9 by the petitioner which had been dismissed by the court below on 18.1.1995; that the court below had allowed the petition filed on the part of the petitioner on condition to pay the costs on or before 18.1.1995, but the petitioner would come forward to say that in spite of the same being intimated by his lawyer, on account of ill-health, he was not able to comply with the condition imposed by this Court resulting in the order passed in favour of the petitioner having come to be lapsed.

3. On the part of the other side, it would be argued that the petition had been dismissed on 18.1.1995 and in fact, within 18.2.1995, the petitioner should have filed the petition, but only on 22.2.1995, the petition had been filed without even an application to condone the delay of five days that had occurred in filing the very petition to restore the same under Order 9, Rule 9, CPC. Hence, having filed the said petition without a separate petition filed under Section 5 of the Limitation Act for condonation of delay, the same is not maintainable in law and hence would plead that the petition would become liable only to be dismissed.

4. Based on these pleadings and arguments, the court below rejecting the reasons offered on the part of the petitioner that he was not keeping good health since no materials were placed on record to substantiate the said reason and hence, remarking that only to adopt a delatory tactics, the petitioner had come forward to file the petition to restore the earlier petition and would dismiss the same.

5. It all happened in the petitioner filing the petition under Order 9, Rule 9, CPC before the lower court seeking to restore I.A No. 1597 of 1994 which was dismissed for default in payment of costs as fixed by the court on 18.1.1995. It is only to restore the petition filed under Order 9, Rule 9, CPC by the petitioner, he had filed yet another petition under Section 151, CPC and the same having .come to be dismissed by the lower court, now the petitioner has come forward to file the above CRP on certain grounds as brought forth in the grounds of the civil revision petition .

6. During the arguments, the learned counsel for the petitioner would cite two already decided cases relating to the facts of the case in hand, the first one delivered in Periaswami Asari v. The President. Eluppur Panchayat Board and others, 1972 TLNJ 603 and the second one delivered in M.Ponnaiyyan v. M.Muthayyan and others, 1981 TLNJ 332. So far as the first decision cited above is concerned, it is held:

"The wording of Section 148 allows extension of time even if the original period fixed has expired. It has been held that when the effect of the order, in the event of non-compliance, has to operate automatically without further intervention of the court, Section 148 cannot be applied as the court ceases to be seized of the matter and becomes functus officio. This principle will apply when the suit is finally disposed of. If the order is not final and the court retains control over it and seized of the matter, it will have power to make an appropriate order extending time. The court can grant time, taking note of events and circumstances which happened within the time fixed. It is not necessary that the extension should be asked for before the expiry of the per