Case: Nasik Municipal Corp Vs. M/S R.M. Bhandari

High Court. The executing court was correct in saying that it could not extend time for depositing the cost as the same had been stipulated by the High Court. The High Court has declined to extend the time mainly on the ground that the SLP(C) No.21975 of 2010 filed by the respondents was dismissed as withdrawn and that the respondents have lost their right to challenge the order passed by the Court in Writ Petition No.1077 of 2010. The High Court while declining to enlarge the time to deposit the cost neither took into consideration the sequence of dates and events stated by the appellant-corporation nor the explanation offered by the appellant-corporation for the delay in depositing the amount. This, in our view, is not correct. 13. In Chinnamarkathian alias Muthu Gounder and Anr. v. Ayyavoo alias Periana Gounder and Ors., (1982) 1 SCC 159 , this Court called in the principle of equity and held that the court has the jurisdiction to examine alteration or modification which may necessitate extension of time. In para (15), this Court held as under:- ….It is a well accepted principle statutorily recognised in Section 148 of the Code of Civil Procedure that where a period is fixed or granted by the court for doing any act prescribed or allowed by the Code, the court may in its discretion from time to time enlarge such period even though the period originally fixed or granted may expire. If a court in exercise of the jurisdiction can grant time to do a thing, in the absence of a specific provision to the contrary curtailing, denying or withholding such jurisdiction, the jurisdiction to grant time would inhere in its ambit the jurisdiction to extend time initially fixed by it. Passing a composite order would be acting in disregard of the jurisdiction in that while granting time simultaneously the court denies to itself the jurisdiction to extend time. The principle of equity is that when some circumstances are to be taken into account for fixing a length of time within which a certain action is to be taken, the court retains to itself the jurisdiction to re-examine the alteration or modification of circumstances which may necessitate extension of time. If the court by its own act denies itself the jurisdiction to do so, it would be denying to itself the jurisdiction which in the absence of a negative provision, it undoubtedly enjoys…. 14. Reference may also be made to the decisions of this Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26 , Johri Singh v. Sukh Pal Singh and Ors., (1989) 4 SCC 403 , Ganesh Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3 SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546 . 15. In terms of Section 148 C.P.C. court has the discretion to extend the time. The words not exceeding thirty days in total have been inserted by the C.P.C. (Amendment) Act, 1999. Observing that if the act could not be performed within thirty days for the reasons beyond the control of the parties, the time beyond maximum thirty days can be extended under Section 151 C.P.C., in Salem Advocates Bar Association, T.N. vs. Union of India (2005) 6 SCC 344 , this Court in para (41) held as under: 41. The amendment made in Section 148 affects the power of the court to enlarge time that may have been fixed or granted by the court for the doing of any act prescribed or allowed by the Code. The amendment provides that the period shall not exceed 30 days in total. Before amendment, there was no such restriction of time. Whether the court has no inherent power to extend the time beyond 30 days is the question. We have no doubt that the upper limit fixed in Section 148 cannot take away the inherent power of the court to pass orders as may be necessary for the ends of justice or to prevent abuse of process of the court. The rigid operation of the section would lead to absurdity. Section 151 has, therefore, to be allowed to operate fully. Extension beyond maximum of 30 days, thus, can be permitted if the act could not be performed within 30 days for reasons beyond the control of the party. We are not dealing with a case where time for doing an act has been prescribed under the provisions of the Limitation Act which cannot be extended either under Section 148 or Section 151. We are dealing with a case where the time is fixed or granted by the court for performance of an act prescribed or allowed by the court. 16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost. 17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]16. Coming to the finding of the High Court that the respondents have lost their right to challenge the order passed by the High Court in Writ Petition No.1077 of 2010, it is true that SLP (C) No.21975 of 2010 was dismissed by this Court on the ground that cost was not deposited by the appellant-corporation. But that was not of much significance. In the application before the High Court, what was important was that whether the appellant has made out a case for extension based on which time can be extended. From the sequence of events, in our opinion, the appellant-corporation has explained the reasons for the delay in depositing the cost and the time ought to be extended to deposit the cost17. We find substance in the submission of the respondents that since the execution petition was dismissed, the respondents have withdrawn the First Appeal No.344 of 1995 and the respondents cannot be deprived of the opportunity of maintaining a first appeal for challenging the decree passed against them. While extension of time is granted to the appellant to deposit the cost, the respondents cannot be rendered remediless and in our view, the respondents are to be given liberty to have their first appeal restored by making necessary application before the first appellate court