S.S. Balakrishna Aiyar And Anr. vs Parvathammal And Anr. on 4 March, 1927

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Madras High Court
S.S. Balakrishna Aiyar And Anr. vs Parvathammal And Anr. on 4 March, 1927
Equivalent citations: (1927) 53 MLJ 494
Author: Odgers


Odgers, J.

1. 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:

Petitioners 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 petitioners, 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.

2. The first question is whether any appeal under Clause 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 (1910) ILR 35 M 1 : 21 MLJ 1 (FB) and the then Chief justice (Sir Arnold White) said inter alia that he was not prepared to infer that the word “judgment” in Section 15 is to be deemed to include any order in any interlocutory proceeding but that an adjudication is a judgment 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 or 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 rights of parties though temporarily and must be deemed to fall within the definition of judgment.

3. 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.

4. 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 Section 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.

5. It is said that Section 148 applies as by Order 41, Rule 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.

6. Badri Narain v. Sheo Koer (1889) ILR 17 C 512 (PC) 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 Order 41, Rule 10 of which Sub-rule 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 (1889) ILR 17 C 512 (PC) their Lordship’s of the Privy Council held that under this rule (old Section 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, Order 41, Rule 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 (1921) 40 MLJ 308 (PC), 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 Order 41, Rule 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 (1922) ILR 3 Pat. 337 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.

7. Two cases are quoted from Chancery Division, Collinson v, Jeffery (1896) 1 Ch. 644 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.

8. Then in Re Macintosh and Thomas, Solicitors (1903) 2 Ch. 394, a judgment of the Court of Appeal, the decision turned wholly on the construction of Order 65, Rule 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
nothing could be done in these cases to escape the exigency of the order except by way of appeal.

Whereas 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 (1878) 3 QBD 83 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 summons to set aside an appearance, i.e., of the defendant, and if lie 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 (1879) 4 QBD 402 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 further 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 further 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 three months for finding security for a sum of money, and does nothing whatever within the three months, and on the last hour of the last day of the three months he puts in an application to extend the time, his case comes Into the list a month or two afterwards, he then busies himself about the finding of the security or the money and when his application comes on he is able to say that he has the security or the money ready, that is to stay, 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 Aiyar (1916) 3 LW 336 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 this dictum applies, although it may apply with regard to the first. As I have said, if this judgment means that a mere application can automatically extend the time, I am, with respect, unable to accept it. Chandra Goundan v. Palaniappa Goundan (1917) 42 IC 961 : 23 MLT 7, the decision of a single Judge of this Court, has no application as the order did not say that if the condition was not complied with, the application was to stand dismissed.

9. As we were about to deliver judgment our 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 Section 13 of the Arbitration Act in the case of remitted awards even though the award has been delivered; in other words, Section 12 applies to awards remitted and delivered under Section 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 Order 65, Rule 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 [The Commissioner of Income-tax, Madras v. Moihay Ganga Raju (1920) 52 MLJ 273 (FB)] that under Section 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.

10. 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.

11. I agree that the order appealed against is not a “judgment’ as that term has been explained in Tuljaram Row v. Alagappa Chettiar (1910) ILR 35 M 1 : 21 MLJ 1 (FB) within the meaning of Clause 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.

12. 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 non-compliance 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 Section 148, C. P. 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 (1878)3 QBD 83 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.

13. 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 art order is ‘defunct’. This was clearly recognised by Kekewich, J., in Collins on v. Jeffery (1896) 1 Ch. 644 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 (1903) 2 Ch. 394 was to 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 subsisting order and the time could be extended.

14. 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 the three months, 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 Section 148, C. P. C, can be applied to achieve the same object.

15. 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 (1917) 42 1C 961 : 23 MLT 7 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.

16. 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 Section 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 what 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.

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

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