ORDER
1. This is an application in revision by a plaintiff against an order of learned Munsif of Kanauj dismissing his application for restoration of a suit which was dismissed for default. The plaintiff's suit was dismissed for default on 12th April 1934 the date which was fixed for the final hearing of the suit. On 13th April 1934 an application was made by the plaintiff for restoration of the suit: this was followed on 15th September 1934 on condition of payment of Rs. 8 for costs to the opposite party on or before 27th October 1934. In case of default the application was to stand as dismissed. Rs. 4 were paid on 15th September 1934 to the opposite party and the balance was not paid up to 27th October 1934. On 29th October 1934 an application was made on behalf of the plaintiff for permission to pay the balance and for direction to the opposite party's counsel to receive it. The learned Munsif dismissed this application on the ground that he had no power to extend the time for payment of costs. The first point that arises for consideration in this case is whether a conditional order such as passed in this case could have been validly passed under Order 9, Rule 9.
2. Rule 9 lays down that if the plaintiff satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. The rule makes a clear provision for the passing of a conditional order. A doubt was expressed about the validity of such an order in Jagarnath Sahi v. Kamta Prasad 1914 36 All 77. It was observed:
It seems to us that the provisions of Order 9, Rule 13 do not contemplate the passing of a conditional order such as to have an effect analogous to that of a preliminary decree in a suit for pre-emption or on a mortgage.
3. This doubt has been cleared by the decision in Ahmad Husain v. Har Dayal 1926 48 All 199. There it was held that an order restoring a case dismissed for default on condition of the payment of a reasonable amount of costs to the opposite party within a time fixed by the order was not an illegal order but on the contrary was an order contemplated by Order 9, Rule 13, Civil P.C. The order being legal and valid the next question is what was the effect of the order on the expiry of the time fixed for the payment of the costs. As already stated the order was that in case of default of payment of the costs up to 27th October 1934 the application would stand dismissed. The effect was that as soon as the time fixed in the order expired the application stood as dismissed and the Court no longer remained seized of the application. Learned Counsel for the applicant relies on Section 148 which relates to enlargement of time. It lays down:
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.
4. The learned Counsel has urged that he was entitled to extension of time under S 148, Civil P.C., and cites Anant Ram v. Sital Din 1933 All 261, in support of his argument. On a careful reading it will be found that it does not support his case. The order in question has not been correctly reported in the case. It was:
Accordingly I direct that the suit shall go back to the lower Court for retrial on condition that within one month from the day the plaintiff-appellant shall place on the record all the papers that may be necessary for measurements being carried out from a 'Sahadda' and in case that is not done the remand order shall not take effect and the appeal shall stand dismissed automatically upon a report being made by the Court below that the order of this Court for filing papers had not been complied with.
5. There the learned Judge held that the order did not amount to a decree and consequently Section 148, Civil P.C., applied. What he meant was that the matter had not been finally disposed of by the order and therefore Section 148 applied. He observed:
Under Section 2, Civil P.C., a decree is defined as the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
6. He went on to observe:
If the papers had been filed by the plaintiff in time the whole matter would have been reopened so that it cannot be said that the rights of the parties had been conclusively determined. This being so, it appears to me that the first order of the District Judge did not amount to a decree and in consequence it was open to him to give further time.
7. This case went up in Letters Patent Appeal before a Full Bench, vide Sital Din v. Anant Ram 1933 All 262. The Full Bench considered the order in question and upheld the decision on the ground that the order was not final and did not become operative by its own force. There it was observed: "The learned single Judge of this Court was of opinion that the order was not final and it could have been extended if the learned District Judge was inclined to extend the period. We agree with the view taken by the learned single Judge of this Court. What the learned District Judge meant when he said "the appeal shall stand dismissed automatically upon a report being made..." was that he was passing a sort of stop order and at that moment he was not inclined to grant any further time to the plaintiff. The word automatic' and the expression, "upon a report being made" are somewhat contradictory. If the final order depended on receipt of a report from the Court of first instance it cannot be said that the order of the learned District Judge became operative by its own force without any report being received from the lower Court." The application of Section 148, Civil P.C. depends on the question whether the matter has been finally disposed of by the Court and the Court is seized of the matter and has control over it or not. If the order is not final and the Court retains its control over and is seized of the matter it has full power to make any just and necessary order therein including in appropriate oases the extension of time and Section 148, Civil P.C. can be applied. On the other hand if the effect of the order is that in the event of non-compliance it operates automatically and without further intervention of the Court, the section cannot be applied for the obvious reason that the Court ceases to be seized of the matter and becomes functus officio. This view is supported by authorities in S.S. Balakrishna Iyer v. Parvathamal 1928 53 MLJ 494. The order was "that security shall be given within a month otherwise the petition shall stand dismissed." It was held that the time could not be extended. Similarly in Sajjadi Begam v. Dilawar Husain 1918 40 All 579, where the order was "that extra court-fee shall be paid within a week otherwise the suit shall stand dismissed" and in Kshetra Mohan v. Gour Mohan Kapali 1934 37 CWN 878, where the order was "that extra court fee shall be paid within a week otherwise the appeal shall stand dismissed" it was held that no extension could be granted. The order of the learned Munsif is correct. There is no force in the application. It is therefore ordered that it be dismissed with costs.