Allowed

Delux Agencies v. Dwarka Enterprises

Bombay HC27 Apr 2010WP/1634/2010

Case brief

AI extract

What is this about?

A single-judge High Court in Writ Petition No.1634/2010 quashed an appellate court order that recalled a previous order extending time for deposit of costs. The court held the recall was illegal, as the appellate court had power to extend time even after default, and directed the appeal's expeditious disposal.

What did the court decide?

Impugned order dated 21 November 2009 and recalled order of 29 May 2009 restored; appeal to be disposed of by 31 August 2010.

Delux Agencies Vs Dwarka Enterprises — Execution and Attachment | Bombay HC (2010)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.1634 OF 2010

Delux Agencies

.. Petitioner

versus

Dwarka Enterprises .. Respondent

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Mr.M.M.Sandhyanshiv for the petitioner. Mr.Girish R. Agarwal for respondents.

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CORAM : A.S.OKA, J. DATE : 27^th April 2010.

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P.C.:

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. On 9^th March 2010, notice for final disposal at admission stage was issued. The petitioner is the original defendant and the respondent is the original plaintiff. A money suit filed by the respondent-plaintiff was dismissed. The respondent preferred an appeal. By judgment and decree dated 21^st June 2000, the appeal was allowed and money decree was passed against the petitioner. An application was made by the petitioner under Rule 21 of Order XLI of the Code of Civil Procedure, 1908 for setting aside the ex-parte decree. By order dated 10^th April 2008, the decree was set aside subject to the petitioner depositing costs of Rs. 3,000/- on or before 2^nd May 2008. The order provides that if the amount of costs is not deposited on or before 2^nd May 2008, the decree passed in the appeal will stand confirmed. On 18^th June 2008, an application was made by the petitioner for extension of time. Notice was issued of the said application to the respondent. After hearing the respondent, the said application was allowed by order dated 29^th May 2009. The petitioner deposited the amount of costs on 30^th May 2009. On 6^th October 2009, the respondent made an application for review of order dated 29^th

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May 2009. By the impugned order, the application for review has been allowed and order dated 29^th May 2009 has been recalled.

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The learned counsel appearing for the petitioner submitted that the earlier order dated 29^th May 2009 was passed after hearing the respondent. The respondent did not challenge the said order though the order was complied with immediately on the next day. He submitted that the Court was entitled to extend the time fixed for payment of costs. He submitted that order on review is completely erroneous.

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The learned counsel appearing for the respondent submitted that the order dated 10^th April 2008 was a self-operative order. He submitted that the result of non-compliance of the said order was that the decree passed by the Appellate Court stood revived. He submitted that without considering the legal effect of noncompliance with order dated 10^th April 2008, the Appellate Court passed an order dated 29^th May 2009 allowing extension of time. He submitted that the Appellate Court has rightly exercised power of review.

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I have considered the submissions. It is true that time for payment of costs expired on 2^nd May 2008. Even after amendment of the year 2002, the Court was not powerless to extend the time for payment of costs by exercising powers under section 148 read with section 151 of the Code of Civil Procedure, 1908. The said power was exercised by the Appellate Court. Though the order was passed on 29^th May 2009, the application on which the said order was passed was filed on 18^th June 2008. Reasons were set out for delay in deposit of the costs. If application dated 18^th June 2008 remained pending, the petitioner cannot

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be blamed. There was no error apparent on the face of record in so far as the order dated 29^th May 2009 is concerned. The Appellate Court has committed gross error by interferring with that the said order on erroneous assumption that there was no power vesting in the Court to extend time for deposit of costs. Therefore, impugned order is illegal and deserves to be set aside.

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The appeal is of the year 1998. As a result of some default on the part of the petitioner, the appeal has remained pending. Therefore, the petitioner will have to co-operate with the Appellate Court for expeditious disposal of the appeal within the time schedule fixed by this Court.

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Hence, I pass the following order:

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: O R D E R :

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(a) The impugned order dated 21^st November 2009 is quashed and set aside and order dated 29^th May 2009 is restored.

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(b) The Appellate Court is directed to decide the appeal as expeditiously as possible and in any event on or before 31^st August 2010.

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(A.S.OKA,J)

Delux Agencies v. Dwarka Enterprises

Case brief

What is this about?

What did the court decide?

Delux Agencies v. Dwarka Enterprises

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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