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Case Number

Letters Patent Appeal No. 410 of 1926.

Attorney(S)

Messrs. T. M. Krishnaswami Aiyar and M. S. Vaidyanadha Aiyar for the Appellants.
Mr. K. G. Srinivasa Aiyar for the Respondents.

Judges

Odgers
Curgenven, JJ.

Acts

Sect. 66 (2) of the Income-tax Act, 1922
Sect. 13 of the Arbitration Act
Arbitration Act which Act

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from an order made by Mr. Justice Jackson on 3rd September 1926 in C.M.P. No. 4487 of 1926 in a suit for the administration of a deceased person's estate. The defendants had sought a stay of proceedings before the Subordinate Judge. Mr. Justice Jackson ordered that the petitioner give security for Rs. 44,000 to the satisfaction of the lower Court within three months, and provided that otherwise the petition should "stand dismissed with costs."

On 3rd December 1926 the petitioners filed an application to extend the time for furnishing the security. The matter was heard (after transfer) by Mr. Justice Jackson on 17th December 1926, who held that the period allowed had expired (in part because the Subordinate Judge had found the security tendered to be insufficient) and that his earlier order had therefore become effective so that the petition was dismissed with costs. He indicated that the petitioners' proper remedies were either a review of his order or revision of the Subordinate Judge's finding. The petitioners brought a Letters Patent Appeal against the 17th December order.

Legal Issues Presented

Whether an appeal under Clause 15 of the Letters Patent lies from the order of Mr. Justice Jackson of 17th December 1926 — in particular, whether that order qualifies as a "judgment" within the meaning of Clause 15.
Assuming an appeal lies, whether the Court could, under Section 148 of the Civil Procedure Code (or otherwise), extend the period originally fixed for doing an act after that period had expired when the original order provided that failure to comply would cause the petition to "stand dismissed with costs."
Whether an application filed on the last day of the period (but heard after expiry) can, by virtue of filing, operate to extend the period retrospectively so as to keep the matter alive.

Arguments of the Parties

Appellant's Arguments

The appellants contended that Section 148 of the Civil Procedure Code empowers the Court to enlarge a period "from time to time" even though the originally fixed period had expired, and that this power should permit extension in the present circumstances.
They relied on authorities (including Badri Narain v. Sheo Koer and other cases) said to support the proposition that a Court can extend time after the expiration of a previously fixed period.
It was also argued that filing an application on the last day of the stay (here, 3rd December) should prevent prejudice to the petitioner if the Court heard the application some days or weeks later — i.e., the act of putting in the application should preserve the stay or operate retrospectively.

The opinion does not provide a detailed account of specific respondents' arguments opposing these contentions; the judges' reasons discuss authority and legal principles in response to the appellants' points.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tuljaram Row v. Alagappa Chettiar (Full Bench)	Definition of "judgment" under Clause 15 of the Letters Patent — an adjudication that puts an end to the suit or proceeding (if non-compliance will end it) may be a "judgment"; interlocutory orders generally excluded unless they have that effect.	The court relied on this Full Bench exposition to assess whether Jackson, J.'s order was a "judgment" for appeal purposes and concluded the order was not a "judgment" within that meaning (Odgers, J. and Curgenven, J. followed this reasoning in part).
Badri Narain v. Sheo Koer (Privy Council)	Held that under the rule equivalent to O.41 R.10 (old Sect. 549) a Court could extend time even though the period originally fixed had expired, because that rule required a further order after default before the proceeding was finally rejected.	The appellants relied on this case; the court distinguished it because Jackson's order expressly provided that failure to comply would cause the petition to "stand dismissed with costs" — unlike the situation in Badri Narain where a further order was required to reject the appeal.
Sabitri Thakurain v. Savi (Privy Council)	Interpreted O.41 R.10(2) as mandatory (not permissive) — the sub-rule precludes retrospective permission to continue a matter where the rule's conditions are not met (i.e., the proceeding is treated as dead).	Used to support the proposition that an application seeking to revive a matter which has become "dead" under the rule cannot succeed.
Amir Mandal v. Mohan Chandra Mandal	Instance where an appeal was reinstated on humanitarian facts (lack of available stamps) rather than on authority of a general legal principle to extend time.	The court observed this case was sympathetic but not a reliable authority for the broad proposition that time may always be extended post-expiry; it was not treated as authoritatively supporting the appellants.
Collinson v. Jeffery (Chancery Division)	Illustrated that where an order prescribes a term and provides dismissal in default, whether a further order is needed (and whether the action is regarded as "dead") depends on the precise wording of the order.	Quoted (Kekewich, J.) to show that if an order makes the action "stand dismissed" automatically, then no later extension may be possible; contrasted with orders requiring a further step to dismiss.
Re Macintosh and Thomas, Solicitors (Court of Appeal)	Turned on the wording of O.55 R.27 / Reg.57: the taxing officer's power to extend time is to be exercised within limits; construction depends on statutory/regulatory wording.	Cited to show that power to extend after expiry depends on the exact statutory/regulatory language and on whether the original order left a pending matter; supported the view that wording governs the availability of extension.
Whistler v. Hancock (Queen's Bench)	Held there was no jurisdiction to make an order subsequently extending time after the period fixed for compliance (order dismissed action for want of prosecution unless compliance in specified time).	Relied upon to support the proposition that once an order has rendered a proceeding "defunct" by efflux of time, a later extension is not available.
King v. Davenport (Queen's Bench)	Similar to Whistler — where the time expired the action was at an end and the Master had no jurisdiction to give further time.	Applied to reinforce that a mere application filed before expiry but heard after cannot automatically keep the matter alive.
Sivakolundu Pillai v. Ganapathi Iyyar	Held that where a petition for extension was filed before expiry, an order subsequently made extending the period could have retrospective effect (in the reported circumstances the Court thought delay in passing orders should not prejudice the petitioner).	The court considered this case but expressly declined to accept that a mere filing of an application always operates as an automatic extension; treated the decision as fact-sensitive and not establishing a universal rule.
Chandra Goundan v. Palaniappa Goundan (single judge)	Distinguished on the basis that the relevant order did not contain words making the application automatically stand dismissed on non-compliance.	Used to support the proposition that whether extension is possible depends on whether the original order itself effected dismissal or left the matter pending.
Martirosi v. Subramaniam Chettiar (O.S.A. No. 120 of 1925) (Full Bench)	Interpreted Section 13 of the Arbitration Act to permit extension of the time for return of a remitted award even if the award has already been delivered; tied to the particular wording of the Arbitration Act.	Distinguished by the court as confined to the Arbitration Act's statutory language and thus not establishing a general principle applicable to orders of the kind in the present case.
Commissioner of Income-Tax v. Mothay Ganga Raju (Full Bench)	Held that under Section 66(2) of the Income-tax Act, 1922, neither Court nor an official has power to extend the time limited by that section.	Cited to show that statutory language can restrict any power to extend time and to support the conclusion that extension powers are not of universal application.

Court's Reasoning and Analysis

The court's analysis proceeds in two principal stages: (A) threshold question on appealability under Clause 15 of the Letters Patent (whether the order is a "judgment"), and (B) assuming appealability, whether time could be extended after expiry under Section 148 CPC or by other means.

A. Whether the order is a "judgment" for purposes of Clause 15

The court examined Full Bench authority (Tuljaram Row v. Alagappa Chettiar) on the meaning of "judgment" in Clause 15: a judgment for this purpose is an adjudication which, if not complied with, will put an end to the suit or proceeding before the Court concerned.
One judicial view (Krishnaswami Aiyar, J.) had favoured a wider interpretation including some interlocutory orders that temporarily affect rights, but the leading exposition adopts the "puts an end to the suit" test.
Applying that test Odgers, J. concluded Jackson's order was not a "judgment": it did not affect the parties' rights even temporarily nor could it affect the ultimate determination of the suit; accordingly the appeal did not lie under Clause 15 and the appeal should be dismissed on this ground.
Curgenven, J. concurred, reaching the same conclusion that the order was not a "judgment" as explained in Tuljaram Row and was therefore not appealable under Clause 15; he also indicated that even if appealable it would fail on the merits.

B. Merits — whether time could be extended after expiry

The court considered Section 148 CPC (power to enlarge periods "from time to time, even though the period originally fixed or granted may have expired"). The appellants argued this permitted extension after expiry.
The judges analysed whether the character and wording of Jackson's original order (which explicitly provided that failure to give security within three months would cause the petition to "stand dismissed with costs") left any pending proceeding on which an enlarging order could operate. Both judges concluded it did not: the order was intended to have automatic effect on non-compliance without need for further order.
Odgers, J. reviewed authorities where post-expiry extension had been allowed (Badri Narain) and distinguished them on the ground that those orders did not contain the same automatic-dismissal wording and/or required a further step before rejection would follow. He treated Sabitri Thakurain as supporting the proposition that some rules make continuation impossible after default.
Curgenven, J. emphasized the permissible form of a conditional order that automatically dismisses if its terms are not complied with; once the time has expired and the dismissal has occurred by the order's own terms, there is no pending matter left for Section 148 to operate on. He relied on Whistler v. Hancock, King v. Davenport, Collinson v. Jeffery and Re Macintosh and Thomas to show that the availability of extension turns on the original order's wording and on whether the proceeding remains alive.
Both judges rejected the argument that mere filing of an application on the last day automatically preserves or extends the time if the Court later hears it after expiry. Odgers considered Sivakolundu Pillai but declined to accept a blanket rule that filing alone preserves the period; Curgenven cautioned that allowing such retrospective relief would effectively allow indefinite extension by late hearings and undermine the operation of time-limited orders.
Both judges distinguished the Full Bench decision concerning Section 13 of the Arbitration Act which permits extension for remitted awards even if delivered: that decision was confined to statutory wording in the Arbitration Act and did not establish a general power to extend time in cases where the original order operated to extinguish the proceeding.
Finally, the court noted the appropriate remedies for the appellants were to seek review of Jackson's order or to move to revise the Subordinate Judge's finding that the security tendered was insufficient; they could not revive the proceeding by invoking Section 148 once the original order's condition had taken effect.

Holding and Implications

Holding: The Letters Patent Appeal is dismissed with costs.

Implications:

The immediate practical consequence is that the petition was treated as dismissed for non-compliance with the condition imposed by Mr. Justice Jackson's order, and the appellants' attempt to obtain an extension after the expiry of the specified time failed.
The Court held that where an order expressly provides that non-compliance within a stated period will cause the application to "stand dismissed" (or otherwise terminate without further order), once the period has expired and the dismissal has taken effect there is no pending proceeding on which Section 148 CPC may operate to enlarge time.
The Court indicated the appellants' proper course would have been to apply for review of the Judge's order or for revision of the Subordinate Judge's finding regarding insufficiency of security; the decision did not purport to create a new general rule allowing post-expiry extension where the original order has itself caused the proceeding to be extinguished.
No novel, universally applicable principle extending the power to enlarge time beyond the terms of existing statutory or rule provisions was laid down; the decision turned on construing the wording of the original order and existing authorities.

Disposition: Appeal dismissed with costs.

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S.S Balakrishna Ayyar And Another (Petitioners In C. M. P. No. 4487 Of 1926). v. Parvathammal And Another S (S In Do).

Odgers, J. — This is a Letters Patent Appeal from the order of Mr. Justice Jackson in C.M.P No. 4487 of 1926 dated 17th December, 1926. The suit in which the order was made was one for administration of the estate of a certain deceased person and the defendants asked for stay of proceedings in the suit before the Subordinate Judge. On the 3rd September, 1926, Mr. Justice Jackson made an order of which the following is the relevant portion:

“Petitioner to give security for Rs. 44,000 as found by the commissioners, to the satisfaction of the lower Court within three months. Otherwise the petition to stand dismissed with costs.”

On the 3rd December, 1926, the petitioners put in an application to extend the time for furnishing security. The matter came up on the 17th December, 1926, before Mr. Justice Waller who transferred it to Mr. Justice Jackson for hearing. Mr. Justice Jackson found that the period had expired as the Subordinate Judge had found the security to be insufficient and that therefore his order of the 3rd September, 1926, became effective, i.e, that the petition was dismissed with costs. The learned Judge pointed out that the petitioner's proper course was either to apply for a review of the learned Judge's order or to apply to revise the Subordinate Judge's finding. He was of opinion that he could not cancel the dismissal contained in the order of 3rd September, and extend the period. It is against that order that the Letters Patent Appeal is brought.

The first question is whether any appeal under Cl. 15 of the Letters Patent lies in this case, and whether the order of Mr. Justice Jackson of the 17th December is a judgment. The question was considered by a Full Bench of this Court in Tuljaram Row v. Alagappa Chettiar and the then Chief Justice (Sir Arnold White) said inter alia that he was not prepared to infer that the word ‘judgment’ in Sect. 15 is to be deemed to include any order in any interlocutory proceeding but that an adjudication is a judgments, within the meaning of the clause if its effect is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned—if its effect, if it is not complied with, is to put an end to the suit or proceeding but that an adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not a judgment within the meaning of the Letters Patent. He thought an order on an application for an interim injunction or for the appointment of a receiver is a judgment within the meaning of the clause as although it was ancillary to the suit it was with a view to rendering the judgment effective if obtained. Mr. Justice Krishnaswami Aiyar was of opinion that, however wide the interpretation of the term ‘judgment’ may be, it ought not to be understood to include interlocutory orders. That learned Judge did not recognise any distinction in principle between an order staying execution or refusing to stay and an order directing security for costs in an appeal. He thought that those orders affect the right of parties though temporarily, and must be deemed to fall within the definition of judgment.

I am of opinion that this order of Mr. Justice Jackson is not a judgment. It did not affect the rights of the parties even temporarily nor, in my view, could it have any effect for good or ill, on the ultimate determination of the suit. I therefore think on this short point the appeal should be dismissed.

Assuming I am wrong, I proceed to discuss the matter on the arguments addressed to us. The first argument is that the matter falls under Sect. 148 Civil Procedure Code:

“Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code the Court may, in its discretion from time to time, enlarge such period even though the period originally fixed or granted may have expired.”

It is said that Sect. 148 applies as by O. 41, R. 5 an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the appellate Court may order. The Code nowhere says that where a conditional order is made and that if the condition be not complied with, the petition shall stand dismissed, this can be extended or revived by an order passed after the time allowed has expired.

Badri Narain v. Sheo Koer is relied on by the appellants as an authority for the proposition that a Court can extend the time after its expiration. That was a case of security for costs under what is now O. 41, R. 10 of which Sub-R. 2 provides that where such security is not furnished within such time as the Court orders, the Court shall reject the appeal. In Badri Narain v. Sheo Koer their Lordships of the Privy Council held that under this rule (old Sect. 549) the Court had power to extend time even though the period of time first fixed had expired. But there the order itself did not contain words which the order of Jackson, J., contains, namely:

“otherwise the petition to stand dismissed with costs.”

In other words O. 41, R. 10 requires some, further order after the default has been made before the proceeding comes to an end. Another case of the Privy Council cited was Sabitri Thakurain v. Savi where on an application by a party after the time given to the opposite side for furnishing security for costs had expired} he applied for the dismissal of the appeal; whereupon the petitioner, for the first time applied to proceed in forma pauperis; the Privy Council held that the words of O. 41, R. 10 (2) are mandatory and not permissive and that the High Court could not possibly grant permission to continue the appeal in forma pauperis as such permission would, in fact contradict the terms of the sub-rule; in other words, the application sought to revive a matter which was dead. The case Amir Mandal v. Mohan Chandra Mandal is relied on where the Court, if one may respectfully say so, proceeded more in ad misericordiam than perhaps according to the strict law; no law is quoted in the judgment, and the learned Judges appear to have been swayed by the fact that the Court-fee ordered to be paid within a month was not so paid because the stamp-vendor had no stamp of the value required though the price was tendered to him on the proper day. There the learned Judge decided “to reinstate the appeal” there having been no laches or negligence on the part of the petitioner. It does not seem to me that the case can form any authority for the present.

Two cases are quoted from Chancery Division—Collinson v. Jeffery which was a redemption action. Two months were given to lodge the money

“in default the action to be dismissed with costs.”

There was, as the learned Judge found, a bona fide mistake with regard to the time allowed and it is also to be noted that a further order was necessary in order to dismiss the action. As Kekewich, J., observed.

“It is not the practice to say that the action is dead, for, it is necessary in this and other analogous cases, to make a further application in order to obtain the absolute dismissal of the action. There is another form of order available and appropriate where the Court thinks that severe terms should be imposed, namely, that on failure to do certain acts within a specified time, then the action do stand dismissed without further order. In this case no such words are in the order.”

Then in Re Macintosh and Thomas, Solicitors, a judgment of the Court of Appeal, the decision turned wholly on the construction of O. 55, R. 27, Reg. 57 of the Rules of the Supreme Court. The Regulation gives the taxing officer power to limit or extend the time for any proceeding before him, Even there Vaughan Williams, L. J., was inclined to agree with the argument that on the actual words of the order itself prima facie the power to extend must be exercised within the limit of one month, i.e, the original period granted. Romer, L. J., distinguishes the Queen's Bench Division cases cited below as cases where there was no power in the Court to extend the time and as he points out that

“nothing could be done in those cases to escape the exigency of the order except by way of appeal.”

where in the case before the Court of Appeal the order for taxation expressly provided for an extension of the time within which the certificate of the Taxing Master may be made, and within which the order is to be effective. Both Vaughan Williams, L. J., and Stirling, L. J., repeat the statement that the decision turns entirely on the wording of the regulation. Turning to the Queen's Bench cases which were thus distinguished: Whistler v. Hancock was an order dismissing an action for want of prosecution unless the statement of claim should be delivered within a week. The week expired and the Court held that there was no jurisdiction to make an order subsequently extending the time for the delivery of the statement of claim. The plaintiff took out a summous to set aside an appearance, i.e, of the defendant, and if he could have obtained an order to that effect before the week was out, he would have been the victor (Per Cockburn, C. J.). In King v. Davenport an order was made on the 6th of May dismissing the action for want of prosecution if the statement of claim were not delivered within 14 days which expired on the 20th of May. On the 19th the plaintiff took out a summons for farther time, the summons being returnable on the 20th. It was not served till the 20th and was adjourned by consent in writing till the next day. The summons was heard on the 21st when the Master made an order giving 7 more days for the delivery of the statement of claim. The Court held that the action was at an end on the 20th of May and the Master had no jurisdiction to give farther time. These cases seem to me entirely in point and the last case bears also on another point because it is urged before us that the fact that an application was put in on the 3rd of December, i.e, the last day of the stay, was sufficient to extend the stay because it is not the fault of the petitioner that the Court heard his application some days or weeks after the petition is put in. To admit this doctrine seems to me to be most dangerous. If it could be held that an order dates back to the date of application and the application is not heard for several weeks or possibly months, it would mean that merely by putting in an application the petitioner gets several weeks or months more additional stay. Suppose a man is given 3 months for finding security for a sum of moneys and does nothing whatever within the 3 months and on the last hour of the last day of the 3 months he puts in an application to extend the time, his case comes into the list a month or two after-wards, he then busies himself about the finding of the security or the money and when his application comes on be is able to say that be has the security or the money ready, that is to say, that instead of his original three months he has four or five months or possibly more in which to carry out the order. It seems to me that the law cannot intend a mere application to in any way act as an automatic extension. The case for this proposition in Sivakolundu Pillai v. Ganapathi Iyyar is relied on There there was an attachment by precept and it was contended that it had come to an end at the expiry of two months from the date it was made. A petition was filed before the expiry of the two months and an order (the case does not say when passed) was made extending the period of attachment for six months which was again extended before the expiry of that portion of six months by another six months. The Court thought that the delay of the Court in passing orders on the petition for extension cannot be allowed to prejudice the petitioner and the order granting extension must be given retrospective effect as if passed on the date of the petition. With regard to the second period it does not appear that the dictum applies, although it may apply with regard to the first. As I have said, if this judgment moans, that a mere application can automatically extend the time, I am, with respect, unable to accept it. Chandra Goundan v. Palaniappa Goundan the decision of a single judge of this Court, his no application as the order did not say that if the condition was not complied with, the application was to stand dismissed.

As we were about to deliver judgment oar attention was called to the recent opinion of the Full Bench in O. S. A No. 120 of 1925 where it was, held that the Court has power to extend the time under Sect. 13 of the Arbitration Act in the case of remitted awards even though the award has been delivered, in other words, that Sect. 12 applies to awards remitted and delivered under Sect. 13. This opinion in my judgment carries the present case no further. It is confined to the construction of certain sections in the Arbitration Act which Act contains certain powers for extending the time in the same way as O. 55, R. 27, Reg. 57 in the Annual Practice does. There is no warrant for holding that the extension of time permitted by those sections is of universal application. On the contrary the Full Bench has recently held Commissioner Of Income-Tax v. Mothay Ganga Raju that under Sect. 66 (2) of the Income-tax Act, 1922 neither the Court nor an official has any power to extend the time limited by the section.

I think therefore the order of Jackson, J., was right and that the method adopted by the appellant is wrong and that, as pointed out by the learned Judge, they ought to have applied to review his order or to revise the Subordinate Judge's finding; i.e, that the security tendered was insufficient. On all these grounds the Letters Patent Appeal must be dismissed with costs.

Curgenven, J.—I agree that the order appealed against is not a ‘judgment’—as that term has been explained in Tuljaram Row v. Alagappa Chettiar within the meaning of Cl. 15 of the Letters Patent, and is therefore not appealable. The appeal, assuming it to lie, should also in my view, be dismissed upon its merits.

It has not been contended before us that it is beyond the competence of a Court to pass an order allowing an application upon certain terms and providing that, if within the time allowed, these terms are not complied with, the application shall automatically and without further interposition by the Court stand dismissed. If any such contention were raised, it could be met by a reference to a number of cases, English and Indian, where orders of this nature have been recognised by the Courts. Accepting, then, that an order of this kind, which remains open for a fixed period, and then, upon noncompliance with the stipulation, closes by force of its own terms, is a permissible form of order, it must, in my view, follow that as soon as the time allowed has expired and the dismissal of the application has taken place, no variation of the terms of the order can be made. The position is in fact, precisely the same as though the order had never been passed; and the power to extend time given by Sect. 148 Civil Procedure Code cannot be invoked because not only has the ‘period originally fixed or granted’ expired, but there is no previous order still current upon which an order extending time could operate. This was the view taken in Whistler v. Hancock where Cockburn, C. J., says:—

“It cannot be contended that the taking out of a summons to set aside the appearance in the meantime could keep the action alive after the period when by the operation of the master's order it was defunct.”

The question thus is whether the original order of Mr. Justice Jackson was of this character. There can be no doubt, from what he says in his subsequent order, that it was his intention to pass such an order and I do not think that any other construction can be placed upon the order which he in fact did pass. If upon failure to give security as provided, the petition was ‘to stand dismissed with costs’, there was no need for any further order dismissing it so soon as the time allowed had expired. Accepting this view, I do not think that there is anything in the cases cited which would support the proposition that the Court could still have extended the time, because it has nowhere been said that this can be done once an order is ‘defunct.’ This was clearly recognised by Kekewich, J., in Collinson v. Jeffery where he said upon an argument being advanced that the action was dead:

“If that is the right view, the matter is beyond my power”

adding however, that in the case before him

“a final stroke is required to effect death.”

It was found, in fact, that a further application was necessary in order to obtain the absolute dismissal of the action and that circumstance, I think, distinguishes that case from the present one. The conclusion reached by the Court of Appeal in Re Macintosh and Thomas, Solicitors was too much the same effect. Byrne, J. who originally heard the motion observed:

“I think that the force of the words ‘or this order is to be of no effect’ destroys the proceeding altogether; that there is no longer a proceeding under which the taxation can take place, and that the power to enlarge the time is meant to be power to enlarge the time while there is a pending matter. But for the final words ‘or this order is to be of no effect,’ I think the order would be a subsistry order and the time could be extended.”

The Lords Justices of Appeal agreed in general with this view, but in the special circumstances of the case—the order for taxation expressly providing for an extension of the time within which the certificate of the taxing master could be made—held that there was still power to extend after the expiry of the time originally fixed. And so here, if Jackson, J.'s original order had required the security to be given

“within three months or within such further time, as by an order passed before or after the expiry of three mouths, may be allowed. Otherwise the petition to stand dismissed with costs,”

it would be reasonable to hold that the order of dismissal would not prevail against a subsequent application for an extension. But I do not think that Sect. 148 Civil Procedure Code can be applied to achieve the same object.

The test to determine, in cases of this nature, whether power still exists to extend time is, in my view, whether the proceeding in which time was originally granted is still pending or has been disposed of. This point was brought out by Krishnan, J., in Chandra Goundan v. Palaniappa Goundan where an ex parte decree had been set aside on condition that the defendant paid the plaintiff's costs within a specified time. The time expired without payment, but neither by the original order nor in any order passed subsequently was the application dismissed. As the learned Judge observed:

“It does not follow that the petition had been disposed by the mere non-compliance without final order of rejection being passed”

and he was inclined to hold that if such a final order had been passed, an application by way of review would have been required to enable the Court to restore the proceeding to its file and pass fresh orders thereon. This appears to me to be the only consistent view to take of the effect of all orders which, either by efflux of time or by express subsequent order, have resulted in a dismissal of the original application.

When this judgment was ready for delivery, the opinion of the Full Bench in Martirosi v. Subramaniam Chettiar (O. S. A. No. 120 of 1925) was brought to our notice. The point there decided is that the Court has power to extend the time fixed by Sect. 13 of the Arbitration Act for the return of a remitted award, although the arbitrators or umpire may already have delivered the award. The decision is largely based upon the terms of the Act, and the consideration of cases arising out of the corresponding English Statute; but I do not think that it involves the acceptance of any principle incompatible with that I have said above. The difference is that in the one case, expiry of the time fixed puts an end to the proceeding, whereas in the other, it has no such effect, but the award, though made beyond the time fixed, may be retrospectively validated. If expiry of the time originally allowed absolutely and finally extinguished the arbitrator's powers, this could not be done. But under the terms of the Act, the Full Bench thinks that this inference need not be drawn.

I agree that the Letters, Patent Appeal should be dismissed with costs.

K. S. D.Appeal dismissed.

S.S Balakrishna Ayya... v. Parvathammal And Ano...