ORDER S.U. Khan, J.
1. At the time of arguments no one appeared for the contesting respondents, hence only the arguments of the learned Counsel for the petitioner were heard.
2. This is plaintiffs writ petition. Plaintiff filed Original Suit No. 21 of 1978 against respondent No. 3, Jagdish Kumar Verma. The said suit was dismissed under Order XVII, Rule 3, C.P.C. against which decree petitioner filed Civil Appeal No. 117 of 1979. Civil Judge Banda through judgment and decree dated 29-1-1980 allowed the appeal, set aside the ex parte judgment and decree passed by the trial Court on payment of Rs. 50/- as costs payable in 15 days. It was however, provided that in case cost was not paid within 15 days then the appeal would be deemed to have been dismissed.
3. According to the petitioner, he paid the amount of cost to the clerk of his counsel, who could not deposit the same within time and an objection to that effect was taken by the respondent No. 3 before the trial Court. Thereafter on 15-2-1980 petitioner filed an application before the Appellate Court under Section 148, C.P.C. For condonation of delay in making the deposit and for accepting the amount of cost. Civil Judge, Banda dismissed the said application on 18-2-1982. The said application had been registered as Miscellaneous Case No. 6/74 of 1982 Panna Lal Gupta v. Jagdish Kumar. The said order is challenged through this writ petition.
4. Before the Appellate Authority a Full Bench authority of this Court reported in Gobardhan Singh v. Barsati AIR 1972 All 246 was cited wherein reliance has been placed upon Mahanth Ram Das v. Ganga Das . According to the Full Bench and the Supreme Court power to extend time to deposit requisite amount (of Court-fees in the said cases), can be exercised under Section 148, C.P.C. even if application is filed after expiry of period initially fixed for payment or deposit of the amount. In the said cases through the initial orders it had also been provided that upon payment of Court-fees within the time fixed would have the effect of automatic dismissal. In spite of such stipulation it was held that power to extend time was very much left with the Court. In the said Full Bench authority reliance has been placed upon several authorities including a Division Bench authority of Calcutta High Court reported in Bokaro and Rangur Ltd. v. State of Bihar . Strangely enough in the impugned order Appellate Court held that after expiry of period in such circumstances Court becomes functus officio and time cannot be extended. In my opinion, the order passed by the lower appellate Court is patently erroneous in law and the lower appellate Court has not correctly understood the legal position as interpreted by the Supreme Court, the Full Bench and several other authorities. If Court-fees can be permitted to be paid after the expiry of period initially fixed and on the application for extension of time filed after the expiry of initial period, then there is all the more reason to condone the delay in payment of cost even if the application is filed after the expiry of initial period fixed for the said purpose. The point is squarely covered by the aforesaid Supreme Court and Full Bench authorities.
5. In the aforesaid authorities it has been held that in such situations time to do any thing required by the decree may be extended except in the case of conditional decrees. If it is provided m a decree that for non-payment of Court-fees or cost within a fixed period the suit would be deemed to have been dismissed, then the decree does not become conditional. Conditional decree means a decree where relief on merit is granted on the condition of performance of some act by the party in whose favour the decree is being passed like decree for specific performance under the old Specific Reliefs Act, requiring plaintiff to pay the balance sale consideration within certain time, as held by the Calcutta High Court in the aforesaid authority of Bokaro in paragraph 12(B).
6. Accordingly, writ petition is allowed. Impugned order is set aside. Time to make the deposit of the cost of Rs. 50/- granted by the judgment and order dated 29-1-1980 passed in Civil Appeal No. 117 of 1979 by Civil Judge, Banda is extended till 30-11 -2006. (In my opinion a good ground had been made out in the application for condonation of delay). On such deposit being made with the trial Court, the trial Court shall at once issue notice to the defendants respondent No. 3 and decide the suit as expeditiously as possible as it is already quite old.