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Judgment
Satish Chandra, C.J.—This revision is directed against an order dismissing an insolvency petition filed by a creditor. The petition was dismissed on the ground that costs were not paid. It appears that on 4th February 1978 the petitioning creditor applied for adjournment on the ground that his counsel was busy elsewhere. The Insolvency court granted adjournment subject to payment of Rs. 16/- as costs by the next date. The next date fixed in the case was 25th February 1978. On that date when the case was taken up, the petitioning creditor''s counsel made an offer to pay the cost but the Insolvency court refused to accept it. On the other hand, it dismissed the petition with costs.
Aggrieved, the petitioning creditor has come to this Court in revision.
The court below acted u/s 35B of the Code of Civil Procedure. Under it, the court can make an order requiring such party to pay to the other party costs and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of:
(a) the suit by the Plaintiff, where the Plaintiff was ordered to pay such costs
(b)...
Under Sub-section (2) if the costs are not paid then a separate formal order is prepared which is executable as a decree, Section 35B does not authorise the court to dismiss a suit for non-payment of costs of adjournment. It can prevent the Plaintiff not to proceed with the suit if the costs are not paid. The requirement is to pay the costs on the next date fixed. It is hence not necessary that the costs must be paid prior to the next date. In the present case the order for payment of costs was made on 4th February, 1978. The next date fixed was 25th February 1978. The costs could validly be paid on 25th February 1978. On that date an offer to pay the costs was made but the learned Insolvency Judge refused to accept it. In that, he committed an error of law.
In the result, the revision succeeds and is allowed. The impugned order dismissing the petition is set aside and the matter is sent back to the court below for proceeding in accordance with law. It will be open to the Plaintiff to pay the costs on the first date of hearing now fixed in the case. There will be no order as to costs in this revision.