Default clause provided in the order.

In C.M.P. No. 2995 of 1957 the appellants in S.A. No. 326 of 1957 applied for stay of the execution of the decree of the Court below. On 2nd September, 1957, Ramaswami, J., passed the following order in the C.M.P.: —

“Stay asked for will stand granted if security is furnished in the sum of Rs. 5,000 to the satisfaction of the trial Court within two months from the date of this order and failing which this application will stand dismissed with costs. This will be in addition to the sum of Rs. 2,000 already deposited, which will not be allowed to be withdrawn pending disposal of the appeal by the appellants.”

In order to obtain the benefit of this order the appellants had to furnish security by 2nd January, 1957. On 25th October, 1957, they tendered security of property which was valued by the Amin at over Rs. 11,000. Objection was taken that the 1st petitioner had only a fractional interest in the property and that therefore the security was insufficient. On 4th December, 1957, trial Court called for additional security and time was given till 19th December, 1957. On 18th December, 1957, additional security was tendered, but objection was then taken that the Court had no jurisdiction to extend the time. So the petitioners filed C.M.P. No. 333 of 1958 in this Court for extension of the time that had been granted by Ramaswami, J., in C.M.P. No. 2995 of 1957.

The question is whether in view of the default clause attached to the order this Court has jurisdiction to extend the time.

Mr. Gopalaswami Ayyangar, the learned advocate for the petitioners, referred to section 148 of Civil Procedure Code and argued that Ramaswami, J., had given time under that section and that under the terms of that section this Court has power to enlarge the time even though the period originally fixed may have expired. Section 148 no doubt empowers the Court in its discretion to enlarge or extend the time for the doing of an act. But then, it presupposes that the suit or appeal or proceeding in which time was granted is still pending. Where the suit, appeal or other proceedings has by virtue of any orders passed by the Court ceased to exist so to speak, section 148 can have no application. In the present case it is true that S.A. No. 326 of 1957 is still pending. But by reason of the order made by Ramaswami, J. on 2nd September, 1957, C.M.P. No. 2995 of 1957 is no longer pending. This will mean, therefore, that the present application C.M.P. No. 333 of 1958 to extend the time in C.M.P. No. 2995 of 1957 will not lie. If the matter were res integra I would have been inclined to say that time cannot be extended in C.M.P. No. 2995 of 1957 but that it would be open to the petitioner to file a separate application for stay. But, as will presently appear the matter is not res integra.

Mr. Gopalaswami Ayyangar referred me to the decision in Badri Narain v. Sheo Koer1, where the Privy Council held:

“Where the High Court, under section 549, Civil Procedure Code, has demanded security from an appellant, it has power to extend the time for complying with this order on application made, as well after as before the time first fixed has expired ; and may nevertheless reject the appeal, under that section, if the security is not in the end furnished.”

At page 515 their Lordships observed:

“In the present case it appears to their Lordships that the High Court were wrong in holding that they had no power to extend the time for giving the security, and that they were bound, by section 549 to reject the appeal.”

But when we examine the facts of the case we find that there was no default clause attached to the original order. What happened in that case was this. On 12th February, 1885, an order was made by the Calcutta High Court directing that the appellant should within two months furnish security to the extent of Rs. 5,000 in respect of the costs of the appeal before it, and of the original suit. The order stood thus and no default clause was annexed to it. So too was the ca