1. This is a case in which the respondent herein has kept quiet for a continuous period of six months after a valid order had been obtained by the petitioner herein on 20th March, 1980, for possession of the suit property which was delivered in execution and the delivery was also recorded and the E.P was closed. As a matter of fact, I.A 441 of 1980, was filed to extend the time for payment of the amount ordered in I.A 1059 of 1979 which petition was under S. 5 of the Limitation Act. While disposing of I.A 1059 of 1979 on 21st April, 1979, the lower court had granted some time within which the amount had to be paid. The said amount specified in that order was not paid. But, in the meanwhile, that is, on 20th March, 1980, possession of the suit property was delivered in execution and delivery was recorded and E.P was closed. Under the circumstances, when I.A 441 of 1980 had been filed to extend the time for payment of the costs ordered in I.A 1059 of 1979, how the said prayer could be granted and is it not that the said order should be revised under the provision of S. 115 C.P Code? This is the rhetorical question that emanates from the learned counsel for the petitioner herein. This Court feels that this question has got substance. The contention that is surrounding the said rhetorical question has got valid support in P.K Sukumaran v. Sulaiman Khan,1 and Krishnan Dutt v. Mohinder Nath,2 in the submission made by Mr. T.K Subba Rao, learned counsel for the petitioner herein.
2. On the other hand, the learned counsel for the respondent herein refers to the provision under S. 148, C.P.C which deals with enlargement of time. He relies on the decision in Periasami Asari v. President, lluppur Punch. Board . 1975-1-M.L.J 244 =86 L.W 258.
3. Each case has to be decided on the facts of that particular case. The instant case, which has now reached the state of a civil revision petition in this Court had a nice story behind it. O.S 330 of 1978 was the suit inititutcd by the plaintiff for declaration and possession. On 22nd February, 1979, an ex parte decree was passed in the said suit because the defendant's counsel reported no instructions. On 21st April, 1979, I.A 1059 of 1979 was filed by the defendant under S. 5 of the Limitation Act for condoning the delay in filing a petition to set aside the ex parte decree. As a matter of fact, I.A 1060 of 1979 was also filed by the defendant to set aside the ex parte decree in the suit O.S 330 of 1978. On 1st February, 1980 the petition for condoning delay, namely, I.A 1059 of 1979 was ordered and a condition was imposed that a sum of Rs. 75 has to be paid by way of costs to the other side before 28th February, 1980. This condition was not satisfied. Therefore, on 28th February, 1980, I.A 1059 of 1979 was dismissed for non-compliance with the condition imposed, in I.A 1060 of 1979 for setting aside the ex parte decree was also dismissed. On 20th March, 1980, possession of the suit property was delivered in execution and delivery was recorded and E.P was closed. From the above details which are not in dispute, it is clear that for a period of about six months, the decree holder had been in possession of the suit property till the order under revision was passed. How it can be ordered is a big question which had formed itself into a rhetorical question and had emanated from the learned counsel for the petitioner, Mr. T.K Subba Rao.
4. Now, let me in fairness refer to the decisions cited by the counsel. In Sukumaran v. Sulaiman Khan, which has been relied on by the learned counsel for the petitioner, it was held that it was not possible to say that the time fixed under the conditional decree could be extended by the court after the default clause had operated and that the remedy for the petitioner could only be by way of review or appeal. In that case, the court had passed a final order in the suit and the court did not retain control over the suit any further. In such cases, it was held that it could not be said that either S. 148 or 149, C.P.C could be invoked. In Krishnan Dutt v. Mohinder it has been held that S. 148 cannot be invoked by the petitioner for condonation of delay because on passing final order, the proceeding had come to an end and the court became functus officio,
5. In Periasami Asari v. President, Iluppur Panchayat Board, relied on by the learned counsel for the respondent, it has been held that the wording of S. 148, C.P.C allows extension of time even if the original period fixed has expired. It has also been held in that case that it is not necessary that the extension of time should be asked for before the expiry of the period. The counsel for the respondent also relied on Mohanth Ramdas v. Camra Das Gobardhan v. Barsati . 1962-1 M.L.J 167=74. L.W 737..
6. It is represented by the learned counsel for the respondent that the petition I.A 441 of 1980 was filed on 14th March, 1980, that is even prior to the possession of the suit property was ordered and delivered actually in execution which was on 20th March, 1980. In other words, this learned counsel for the respondent submits that even about six days prior to the actual order of possession of the suit property directed by the lower court, application I.A 441 of 1980 was filed before the lower court. This is not an excuse. If he was really aggrieved by the order of possession made by the lower court on 20th March, 1980, the respondent ought to have preferred the suitable remedial measure available to him and if he had kept quiet with respect to the same, but had now come forward with the contention that on 14th March, 1980, itself the application was filed, the said contention does not support his case at all. The said contention has to be repelled under the circumstances. If the respondent has been really aggrieved with respect to the possession that had been ordered, he has to pursue the remedial measures available to him and not agitate that point here in this petition. There is absolutely no justification for any extension of time in the present case in as much as the decree holder had taken possession of the premises in question and had been in possession for six months on the date of the pronouncement of the order under revision merely on the ground that even about six days prior to the order of possession I.A 441 of 1980 was filed. The lower court has ignored and has completely lost sight of the proceedings that had taken place before it on 20th March, 1980. It is not as if the court was some other court which ordered possession. Therefore, even if both the sides had not brought to the notice of the lower court this aspect, the lower court ought to have, by itself, gone through the records in the case and enlightened itself before making the order which is under revision. This is a complete dereliction of duty which the lower court had indulged in by extending the time for payment of the costs. When once an order has been made by it, the lower court thinks that it is now open for it, after having ordered on 20th March, 1980, possession of the suit property, and when possession had been taken by the petitioner herein and when he had been in continuous possession for six months, to coolly order the petition for extension of time what is to happen with respect to that person who has taken possession, namely, the revision petitioner herein?
7. All these aspects have been completely lost sight of by the lower court and therefore, the order extending time for payment of Rs. 75 imposed as a condition in I.A 1059 of 1979 is certainly irregular and illegal and becomes revisable. Hence the civil revision petition is allowed with costs.
VCS.