(Burrabathula) Narasimhalu and Others vs Donga Ramayya

Walsh, J.—The facts of the ease appear in the judgment of the lower appellate Court. The present respondent (plaintiff) filed a partition suit

seeking to set aside certain alienations. We are now concerned only with item 3 in the suit. There was a preliminary decree that this alienation

should be set aside on his depositing the sum of Rs. 450 in Court as compensation within six months from the date of the appellate decree dated

14th October 1925. The matter was taken on second appeal to the High Court. The deposit was made on 15th April 1926. When the plaintiff

asked for a final decree the defendants, who were appellants in the High Court, got a stay on condition of furnishing security for mesne profits for

four years, and on this the High Court passed an order that the plaintiff should be at liberty to withdraw his deposit. After some delay the

defendants gave security and the plaintiff''s deposit was attached by certain creditors. The final decree of the High Court as regards this item 3 was

as follows:

(2) That item 3 of the plaint schedule covered by Ex. B be divided into two equal shares and that the plaintiffs be put in possession of one such

share on condition of the depositing of Rs. 450 into Court; and (8) that in case the amount is not so deposited, the plaintiff''s suit, so far as it relates

to the said item 3, will stand dismissed.

On this the District Munsif''s Court on 19th April 1928 gave the plaintiff time to make the deposit. The plaintiff did not make the deposit. The

suit was therefore dismissed as regards item 3. The plaintiff then appealed against the said order that he should make the deposit and also against

the order dismissing the suit. The lower appellate Court dismissed both these appeals holding that the omission to make the deposit was not

accidental but deliberate1 and that Section 148 would not be applicable. But u/s 151 the lower appellate Court allowed the plaintiff four weeks

more time to make the deposit. With this modification the final decree was confirmed in other respects. Against this extension of time defendants 4

to 6, 7 to 10 and 12 have appealed. The argument is twofold, that since the decree provided that the suit will stand dismissed if the money was not

deposited the Court cannot alter its own decree, and, secondly, that the plaintiff having deliberately refused to make the deposit and having

challenged the correctness of the order dismissing the suit for default is not an occasion when the Court is entitled to use its discretion u/s 151. It is

sought to be argued for the other side that when the High Court passed its decree it was referring back to the state of things at the time of the

preliminary decree. I cannot accept this contention for a moment.

The High Court must have known the orders which it had passed by which the plaintiff had been allowed to withdraw the deposit which he had

made. Paras. 2 and 3 quoted above must be read as having been drawn up with full knowledge that the High Court had already dealt with the

matter and therefore these paragraphs can only mean that the plaintiff must deposit Rs. 450 into Court, and if it is not so deposited the plaintiff''s

suit, so far as it related r to item 3, will stand dismissed. It might certainly be an arguable point whether the District Munsif had power to fix the

period within which it should be deposited or whether it was the High Court alone which could do this. I agree that the High Court having allowed

the plaintiff to withdraw his deposit plaintiff was at the time of the decree entitled to be put back into the position which he was in when he had

made the deposit, except that he had now to replace that deposit. The plaintiff himself refused to replace the deposit when he was given time to do

so. He challenged the correctness of the order of the District Munsif that he should replace the deposit, and fought the matter out in two appeals.

He failed in those two appeals and he has not preferred a second appeal here in either as. Therefore it must be held that the order of the District

Munsif that he should pay the deposit was legal and also that the order dismissing the suit for want of payment was also legal. It is unless in the face

of the High Court''s decree to argue that the District Munsif''s Court had no power to order the dismissal of the suit if the amount was not

deposited. It has to be considered whether under these circumstances the exercise of any discretion in favour of the plaintiff can be called a judicial

exercise of discretion.

The learned Additional Subordinate Judge admits that the appellant having failed to comply with the order of the lower Court, and not having

made any application there for extension of time, the present request does not come with much grace. He also says that the omission was not

accidental but deliberate. However he seems to think that appellant has been on the horns of a dilemma because if he had made the deposit he

could not appeal against the order that he should pay it. That seems to me to be no reason whatsoever because it comes to this: that if he refuses to

obey the Court''s order, challenges it in appeal and succeeds, he does hot have to pay any deposit. On the other hand if he fails he is no worse off

than he was before having disobeyed the Court''s order and he is to be allowed time to comply with it. It seems to me that such a course would

lead to the grossest abuse and would simply encourage appeals by which the appellant has everything to gain but nothing whatsoever to lose by

disobeying the order of the Court. I am of the opinion that the extension granted by the Additional Subordinate Judge cannot be considered to

have been in the exercise of any judicial discretion, for this exercise of discretion is in fact reversing the discretion of the District Munaif with regard

to the time granted. I therefore think that the extension of time granted must be refused and that the final decree of the lower Court restored. This

appeal will be allowed with costs.