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TMI Blog1976 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... ot a decree. The plaintiff then preferred this second appeal. It was heard by a learned single Judge, who found that the law was not certain because the authorities were not uniform or consistent on the question whether the Court has power to extend time for depositing costs in spite of the order imposing costs being peremptory. Accordingly, he framed the following questions and directed that the case be placed before the Chief Justice for constituting a larger Bench:-- (1) Whether it was necessary be fore the time could be extended under Sections 148 and 149, Code of Civil Procedure, that an application should be filed before the period allowed by the Court had run out and whether the Court is clothed with ample powers under Section 151, C.P.C., to give redress in such cases? (2) Whether the words 'dismissed in default' also refer, to default committed in respect of adjournment costs'? When the Court fixes time and directs payment or costs or to perform any other act, but there is no compliance within time, the defaulting party may apply for extension of time at one of the following stages: (1) Before the time fixed has expired. (2) After the time fixed has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Court for doing any act prescribed or allowed by the Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.'' (Underlined by us) Even if in the initial order the Court may have said that if costs are not paid before a certain date fixed for it, the suit shall stand dismissed, the Court does not lose seisin of the case after the expiry of such period notwithstanding a default. Such directions are in terrorein so that dilatory litigants put themselves in order The Court does not cease to have jurisdiction on the happening of the default There are no words in Section 148 to confine it to cases in which extension is sought before the period fixed by the Court expires, The Court does not cease to have jurisdiction until it makes an order finally disposing of the proceeding before it. Contrary view was taken in Butasingh v. State by Tare J. (as he then was). Reliance was placed on observations of Roxburgh J, in Bajrang Lal v. Solaki Marwarini, AIR 1950 Cal 564. With great respect, we are unable to accept that view, having regard to the clear language of Section 148 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that the view taken in Radhabai's case alone will be in harmony with the other provisions of the Code of Civil Procedure; otherwise, a party will be left without a remedy and an extraordinary attempt will have to be made to search for one remedy or the other. If the dismissal of a suit for non-payment of adjournment costs is to be included in the expression 'dismissal for default' within the meaning of Section 2(2), C.P.C. it will not be a decree so as to be appealable. Then the question will be : what is the remedy? Order 9, Rule 9 and Order 17, Rule 2, in terms, apply to non-appearance alone, and to no other default. This means that in the above case, the plaintiff would not be entitled to make an application under Order 9, Rule 9, or under Order 17, Rule 2, read with Order 9, Rule 9, as the case may be. Review can hardly be an adequate remedy because it can be on very limited and restricted grounds. There, the plaintiff has to show that either there was an error apparent on the face of the record or that he has been able to discover any new and important matter or evidence within the limitations contained in Order 47, Rule 1, C.P.C, In that proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature. In Halsbury's Laws of England, Third Edition, Vol. 36, page 394, (Para 593), it is stated thus:-- They (words) should be construed in the light of their context rather than in what may be either their strict etymological sense or their popular meaning apart from that context. It is stated in Maxwell on Interpretation of Statutes, 12th Edition at page 278 thus:-- It has been justly remarked that when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. However, in the same treatise, the further statement is:-- This presumption as to identical meaning is, however, not of much weight. The same word may be used in different senses in the same statute and even in the same section, especially in a consolidating statute where the word derives from two earlier enactments. (Page 279) It is said in Craies:-- The presumption that the same words are used in the same meaning is however very slight and it is proper 'if sufficient reason can be assigned, to constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it. In Chamarin v. Budhiyarin reliance was placed on Abdulla v. Ganesh Das, AIR 1933 PC 68. The principal question in that appeal was 'whether an application for execution of a decree is time-barred under the provisions of Article 182 (2), Schedule 1, Limitation Act, 1908'. We do not see any dictum or observation in that case, which applies to the question under consideration. Another case referred to is Batuk Nath v. Mt. Munni Dei AIR 1914 SC 65. A certain observation of Lord Moulton is quoted but Batuk Nath's case also does not deal with this point. With respect it appears to us that the Division Bench really meant to cite Chandri Abdul Majid v. Jawahir Lal AIR 1914 AC 66 because it was in that case that Lord Moulton spoke for the Court and not in Batuk Nath's case (supra). Now, in Chandri Abdul Majid's case (AIR 1914 AC 66) (supra). a decree was passed for sale of mortgaged property. On April 8, 1893, the High Court of Allahabad dismissed the appeal and confirmed the decree 6f the subordinate Judge. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed, the procedure to be adopted is that which has been laid down by the Supreme Court in Jagat Dhish Bhargava v. Jawaher Lal Bhargava (1961 SC 832 : 1961-2 SCR 918 But that is a formal and technical matter. It is one thing to say that an appeal will not be competent so long as a decree is not formally drawn up, and quite another to say that the order is not appealable. It is one of the well established principles of statutes that as far as possible different provisions of the same statute should be so construed as to be in harmony with one another. Another sacred principle is, and which is equally settled, that the law should be so construed as will advance the remedy. We are, therefore, of the view that an appeal lies from an order dismissing a suit for default of payment of costs. We will answer the two questions, which arise for our legal opinion, thus:-- (1) So long as the Court does not record a formal order disposing of the suit or proceedings, it continues to have the jurisdiction to extend the time granted to a party for performing an act, notwithstanding it having already expired, (the only exception being a conditional decree). (2) An order dismissing a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed period. However, the general principles underlying Section 4 of the Limitation Act or Section 10 of the General Clauses Act apply to cases where the act is to be done under an order of the Court by a particular date or within a particular period fixed by it, and such date falls or such period expires on a date when the Court is closed. The principles underlying Section 4 are 'Lex non cogit ad impossibilia' (the law does not compel a man to do that which he cannot possibly perform) and 'actus curiae nerninem gra-vabit' (the act of the Court shall prejudice no man). Therefore, what the plaintiff could and had the right to do on the 4th December (Sunday), he had also the right to do it on the reopening of the Court, i.e. on the 5th December. In that view, it cannot be said that the plaintiff did not comply with the order of the Court. The dismissal of the suit was, therefore, erroneous and illegal. It would be merely a matter of technicality whether we set aside the order in exercise of appellate jurisdiction or in exercise of revisional jurisdiction suo motu. The error is obvious enough and the sooner it is corrected the better, in the interest of justice. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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