JUDGMENT A.P. Srivastava, J.
1. This is a defendant's application in revision. It furnishes an instance of how difficulties can arise as a result of an attempt to enforce an incomplete order.
2. The plaintiff had filed a suit for specific performance of a contract of sale. The defendants had filed their written statements and issues had been framed on 19-10-1953. 4-1-1954 was fixed as the date for final hearing. On that date the defendant No. 1 applied that the case be adjourned and adjournment to 21-4-1954 was allowed on payment of Rs. 25 as costs within fifteen days. On the adjourned date, the defendant again applied for adjournment on the ground of illness. The order passed on this application was in these words: "The defendant's application for adjournment on the ground of illness allowed on payment of Rs. 25 as costs to the opposite party to be paid within a month. Fix 11-8-54 for final hearing." Cost was not paid by the defendant within a month as ordered. On 10-7-1954, the plaintiff pointed out to the Court that costs had not been paid as ordered and prayed that the defence of the defendant should be struck off- On the same date an application of the defendant came up for disposal in which he had prayed for extension of time on payment of costs. The learned Munsif held that as the defendant had not paid the costs within the time fixed and as it was of the utmost importance that the order passed by the Court should be carried out by the parties, the defence of the defendant should be struck off. He, therefore, ordered that the defence of the defendant be struck out and further directed the case to proceed ex parte.
3. Against the above order the present application in revision has been filed and it is contended on behalf of the defendant that the learned Munsif had no jurisdiction to strike out the defence of the defendant simply because he had for reasons beyond his control failed to comply with the order for payment of the costs within the fixed time.
4. The application is opposed mainly on two grounds. It is contended, in the first place, that no revision is maintainable as no case has been decided. The second contention is that the learned Munsif had full jurisdiction to refuse to extend the time granted to the defendant for payment of costs and as the order had not been complied with he had full powers for striking out the defence of the defendant.
5. It is true that no decree has been passed in the case, but that by itself does not mean that a case has not been decided within the meaning of the term as used in Section 115, C.P.C. So far as the defendant is concerned, he has practically been put out of Court The defence he had filed has been ordered to be struck out So far as he is concerned, therefore, the case is practically at an end and the intention of the learned Munsif appears to be that he should not be allowed to participate further in the proceedings of the case at all. An important question in controversy has, therefore, been considered judicially and has been decided finally against the defendant. In the circumstances I am unable to accept the contention that the case has not been decided at least as far as the defendant is concerned. The first objection is, therefore, untenable.
6. The order adjourning the suit on payment of Rs. 25 as costs within a month was passed on a date fixed for final hearing. The order must therefore be held to have been passed under the provisions of Order 17. C.P.C. Under Rule 1 of that Order it is open to a Court, on sufficient cause being shown at any stage of the suit to grant time to the parties or to any of them and from time to time adjourn the hearing of the suit. If a Court can adjourn a suit it can do so unconditionally or by imposing conditions. The learned Munsif while adjourning the suit imposed the condition of payment of Rs. 25 as costs within a fixed period. Unfortunately, however, he did not provide in the order what the penalty for the non-compliance with the condition was to be. Had he done so, no difficulty would have arisen.
The defendant would have then known what penalty he was to suffer if he did not comply with the condition. If in spite of that knowledge he failed to comply with it he could not complain if he was ordered to suffer that penalty. In the present case, however, no penalty having been mentioned and no warning having been given to the defendant he naturally feels aggrieved that such a drastic punishment has come to him as a bolt from the blue.
7. The adjourned date had not yet arrived. It would have come on 19-8-1954. On that date if the defendant was able to proceed with the case, under Rule 3 of Order 17 the Court could have, notwithstanding that default, proceeded to decide the suit forthwith. That occasion, however did not arise.
8. The case was decided against the defendant before the date for final hearing arrived.
When the plaintiff drew the attention of the learned Munsif, to the fact that the defendant had not paid the costs within the time fixed the learned Munsif apparently felt chagrined on the ground that the defendant had dared to disobey his order. He decided to teach the defendant a lesson and ordered that the written statement of the defendant be struck out and the suit should proceed ex parte.
9. It was certainly open to the learned Munsif to extend the time he had fixed for payment of costs or to have refused that extension. The refusal to extend the time, could only result in the liability for costs becoming final and irrevocable. In that case it could have been ordered to be realised from the defendant irrespective of the result of the suit. A formal and executable order could have been passed in that respect The amount could also have been directed to be taxed as costs in the suit in any event.
10. The learned counsel for the plaintiff has not been able to point out any provision in the Civil Procedure Code under which the defence of the defendant could have been struck out as a penalty for non-payment of costs. There are several provisions in the Code under which an order striking out the defence of the defendant can be passed. Reference may be made to Order 8, Rule 10, Order 10, Rule 4, Sub-rule (2), Order 11, Rule 21 and Order 15, Rule 4. The present order striking out the defence of the defendant has, however, not been passed under any of these provisions. Order 17 does not provide for an order striking out the defence of a party. It does not contemplate passing of conditional orders of adjournment and if a condition has been imposed and the striking out of the defence has been mentioned in the order as a penalty for non-compliance with it, it may be possible to impose that penalty.
Except in that contingency such an order does not appear to be permissible under Order 17. There are cases in which such an order has been passed and upheld (vide E. I. Rly. Co. v. Jit Mal Kallo, AIR 1925 All 280) (A) and Venkatachar-yulu v. Manchala Yesobu, AIR 1932 Mad 263 (B). The rule followed in these cases is, however, not applicable to the present case for the simple reason that unlike them in the present case the penalty which has actually been imposed by the learned Munsif was never mentioned by him in the order which he passed on 21-4-1954 and the defendant never got a warning in respect of it. If the learned Munsif in the present case was anxious that his order should be obeyed he should have been careful enough to provide in his order what consequences were to follow in case it was not complied with.
11. The learned counsel for the plaintiff was not able to refer to any case in which such a penalty had been allowed to be imposed without such a warning. He referred to the case of Gauri Shankar v. Manki Kunwar, 1923 All LJ 571: (AIR 1924 All 17) (C). That was a case in which some particulars had been ordered to be furnished in respect of fraud which had been alleged and Chief Justice Mears was dealing with how the subordinate Courts should be watchful to see that particulars in respect of allegations, like fraud should be furnished. In the passage relied upon by the learned counsel for the plaintiff, the learned Judge appears to be dealing with the orders which should be passed in such cases by subordinate Courts.
He laid down that in such cases subordinate Courts should order particulars to be given and further order the party in default to pay a specified sum of costs to the other side for the costs occasioned by the application; such payments to be made on or before delivery of the particulars. He went on to say that in such cases if the order is disobeyed and the plaintiff is in default he should have his action stayed, and if the defendant is in default his defence should be struck out. If such an order is passed (and it should be passed) and the default is still made, the penalty can certainly be imposed. But the case does not appear to be an authority for the proposition that the penalty can be imposed even if such an order is not passed.
12. It therefore appears to me that the portion of the impugned order by which the learned Munsif directed that the defence of the defendant was to be struck out and the case was to proceed ex parte against him cannot be held to be justified or within jurisdiction. It is liable to be set aside.
13. The application is, therefore, allowed to this extent that the order of the learned Munsif that the defense of the defendant be struck off and the case should proceed ex parte is set aside. The case has already become old. The record should be sent back to the Court below at an early date for being proceeded with as expeditiously as possible. The applicant will get his costs from the opposite party in this Court.