# MAHANTH RAM DAS v. GANGA DAS

- **Citation:** [1961] 3 S.C.R. 763
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 432 of 1957
- **Bench:** J. L. Kapur, M. HrnAYATULLAH, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahanth-ram-das-v-ganga-das-2089
- **Pages:** 7

## Headnote

Court Jee-Appeal to stand dismissed if court Jee not paid
within time granted-Extension of time, if can be granted-Code of
Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.
The High Court passed a peremptory order that "the appeal
will stand dismissed " if a certain amount of court fee was not
paid within the time granted by the court. The appellant being
unable to find money made an application for extension of time
before the expiry of the time granted, Md offering to make a
partial payment asked for further time, The application was
(r) [1060) A.C. 336
g8
I96I
February 7,
764
SUPREME COURT REPORTS
[1961
1961
heard after the expiry of the time and was dismissed on the
ground that the appeal had already "stood dismissed " owing to
Mahanth Ram Das non-payment within the time allowed. The appellant's applicav.
tions under s. r5r and 0. 47, r. r of the Code of Civil Procedure
Ganga Das
were also dismissed on the same ground although the court
expressed sympathy for the appellant. On appeal with a certificate of High Court :
Held, that such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory
litigants might put themselves in order and avoid delay but they
do not completely estop a court from taking note of events and
circumstances which happen within the time fixed and time
should have been extended in the circumstances of the case and
the court was not powerless to deal with events happening after
the peremptory order.
Lachmi Narain Marwari v. Balmakund Marwari (r925) I.L.R.
4 Pat. 6r (P.C.). referred to.
Section 148 of the Code of Civil Procedure, in terms, allows
extension of time, even if the original period fixed expired and
s. r49 is equally liberal; the High Court had ample power to
apply those sections and to exercise its inherent powers under
s. r5r in order to do justice to a litigant for whom it had
expressed considerable sympathy.
Latham v. f ohnson [r9r3] r K.B. 39$, referred to.

## Text

3 S.C.R.
SUP.REME COURT REPORTS
763
Mutawalli, while the dispute remained undecided.
r96r
This point has no force whatever.
-
The question which seemed to have largely engaged HaMzrat Syedd sh.ah
t
.
.
h H. h C
1
h h
th d 1
as Im hi Ali
a tent10n m t e
1g
ourt, name y, w et er
e e eAl Quad•ri
gation was only of powers or also of duties of the
v.
Board, was not argued before us, though it formed the Commissioner of
subject of considerable discussion in the statements of
Wakfs.
the case. It is without substance. Where powers and
West Bengal
duties are interconnected and it is not possible to Hidayatullah f·
separate one from the other in such wise that powers
may be delegated while· duties are retained and vice
versa, the delegation of powers takes with i\ the duties.
The proposition hardly needs authority ; but if one
were necessary, reference may be made to Mungoni
v. Attorney-General of Northern Rhodesia (1).
In our opinion, the appeal has no force whatever.
The appellant chose the extraordinary course of dragging the respondents twice to the High Court and
again to this Court merely to challenge an order of
temporary duration, while · the main controversy
remained outstanding for years and could have been
decided by now.
·
The appeal fails, and is dismissed. The appellant
shall pay the costs of the respondents, who have
entered appearance.
Appeal dismissed.
MAHANTH RAM DAS
v.
GANGA DAS.
(J. L. KAPUR, M. HrnAYATULLAH and J.C. SHAH, JJ.)
Court Jee-Appeal to stand dismissed if court Jee not paid
within time granted-Extension of time, if can be granted-Code of
Civil Procedure, r908 (V of r908). ss. r48, I49, I5I, 0. 47, r. r.
The High Court passed a peremptory order that "the appeal
will stand dismissed " if a certain amount of court fee was not
paid within the time granted by the court. The appellant being
unable to find money made an application for extension of time
before the expiry of the time granted, Md offering to make a
partial payment asked for further time, The application was
(r) [1060) A.C. 336
g8
I96I
February 7,
764
SUPREME COURT REPORTS
[1961
1961
heard after the expiry of the time and was dismissed on the
ground that the appeal had already "stood dismissed " owing to
Mahanth Ram Das non-payment within the time allowed. The appellant's applicav.
tions under s. r5r and 0. 47, r. r of the Code of Civil Procedure
Ganga Das
were also dismissed on the same ground although the court
expressed sympathy for the appellant. On appeal with a certificate of High Court :
Held, that such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory
litigants might put themselves in order and avoid delay but they
do not completely estop a court from taking note of events and
circumstances which happen within the time fixed and time
should have been extended in the circumstances of the case and
the court was not powerless to deal with events happening after
the peremptory order.
Lachmi Narain Marwari v. Balmakund Marwari (r925) I.L.R.
4 Pat. 6r (P.C.). referred to.
Section 148 of the Code of Civil Procedure, in terms, allows
extension of time, even if the original period fixed expired and
s. r49 is equally liberal; the High Court had ample power to
apply those sections and to exercise its inherent powers under
s. r5r in order to do justice to a litigant for whom it had
expressed considerable sympathy.
Latham v. f ohnson [r9r3] r K.B. 39$, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
432 of 1957.
Appeal from the judgment and order dated September 27, 1955, of the Patna High Court in Civil Revision
No. 24 of 1954.
R. C. Prasad, for the appellant.
The respondent did not appear.
1961. February 7. The Judgment of the Court was
delivered by
Hidayatul/ah J.
HrnAYATULLAII, J.-The appellant who was plaintiff
in a title suit in the Court of the Subordinate Judge II,
Gaya, has appealed against the dismissal of his·suit by
the High Court at Patna, with a certificate from that
Court. In the suit he had asked for a declaration that
he was nominated Mahant of Moghal Juan Sangat by
his Guru, Mahanth Guiab Das, by a registered deed
dated October 21, 1944, and that he had thus the right
to manage the Sangat and other off-shoots thereof.
His suit was dismissed by the trial Judge on May 31,
1947. He then appealed to the High Court at Patna,
and on November 26, 1951, the appeal was decided in
" •
'
3 S.C.R.
SUPREME COURT REPORTS
765
1961
his favour on condition that he paid court fee on the
amended relief of possession of properties involved in Mahanlh Ram n..
the suit, for which purpose the case was sent to t~e
v.
Court of First Instance for determining the value of
GMlga Das
the properties and for fixing the amount of court fee
to be paid. After the report from the Subordinate Hidayatullah J.
Judge was received, the case was placed for final
orders before the High Court. V. Rama&wami, J. and
C. P. Sinha, J. (as they then were) held that the valuation for the purpose of the suit was Rs. 12,178-4-0, and
that ad valorem court fee was payable on it. They,
therefore, made a direction as follows :
" The High Court office will calculate the amount
of .court fee payable on the valuation we have given
all(! communicate to the counsel for plaintiff-appellan t what is the amount of the court-fee he has got
to pay both on the plaint and on the memorandum
of appeal. We grant the plaintiff three months' time
to pay the court-fee for the Trial Court and also for
the High Court. The time will be computed from the
date counsel for appellant is informed of the calculation by the Deputy Registrar of the High Court. If
the amount is not paid within the time given, the
appeal will stand dismissed. If the court fee is paid
within the time given, the appeal will be allowed
with costs and the suit brought by the plaintiff will
stand decreed with costs and the plaintiff will be
granted a decree declaring ...... "
The office of the High Court gave intimation on
April 8, 1954, that the deficit court fee payable was
Rs. 1,987-8-0. The time was to expire on July 8, 1954;
but the appellant was not able to find the money. It
appears that the appellant's advocate in the High
Court asked the case to be mentioned before the
Vacation Judge on July 8, 1954, so that a request for
extension of time could be made. No Division Bench,
however, was sitting on that date, and the appellant
filed an application on July 8, 1954, requesting that he
be allowed to pay Rs. 1,400 immediately, and the
balance, within a month thereafter. This application
was placed before a Division Bench consisting of
Ramaswami and Ahmad, JJ ., when the following order
was passed:
766
SUPREME COURT REPORTS
[1961)
z96I
" This application for extension of time must be
Mahantk Ram Das
dismissed; By virtue of the order of the Bench
dated the 30th March, 1954, the appeal has already
stood dismissed as the. a.mount was not pa.id within
the time given."
v.
Ganga Das
·Hidayatullah J. The appellant then moved an application under s. 151,
which was rejected by Imam, C.J. and Narayan, J:,on
September 2, 1954. They, however, felt that the proper
remedy was review. The appellant then filed another
petition under s. 151, read with 0. 47, R. 1 of the
Code of Civil Procedure, setting out the reasons why he
was unable to find the money .. He stated that he was
seriously ill, and though he had attempted to raise a
loan, he was unable to get sufficient money, as the
grain market had slumped suddenly, and people were
unable to advance money. He offered to pay the
deficit court fee within such further time as the High
Court might fix.
This application for review was heard on September 27, 1955, by Rama.swami and Sinha, J,J. They first
considered it from the viewpoint of 0. 4 7, R. 1 of the
Code of Civil Procedure, and held that the application
did not fall within the Order. The argument of counsel
that time could have been extended under s. 148 or
s. 149 of the Code of Civil Procedure was also not
accepted. The learned Judges held that these sections
applied only ,to cases which were not finally disposed
of, and that time under them could be extended only
before the final order was actually ma.de. The request
to extend the time under the inherent powers of the
Court was also rejected for the same reμ.son.
Rama.-
swami, J., concluded his order by saying:
" I have considerable sympathy towards the
plaintiff petitioner who ha.s placed himself in an
unfortunate position, but we must be careful not to
allow our sympathy to affect our judgment. To
quote the language of Fa.rweft, J. in another context 'sentinient is a dangerous will-o-the wisp to
take as a guide in the search for legal principles '
(Latham v. Johnsan('))."
(1) (1913) x·K. B .. ~98.
3 S.C.R.
SUPREME COURT REPORTS
767
In the result, the petition was dismissed, but without
z96z
costs.
.
M ahanth Ram Das
The appellant then moved the High Court for a
v.
certificate, a.nd the case was heard by K. K. Banerji
Gang• Das
and R. K. Chaudha.ry, JJ. Though the decree wa.s one .
-
of a.ffirma.nce, the learned Judges fortunately found it Hidayatullah J.
possible to grant a certificate, and the present appeal
has been filed.
The case is an unfortunate and unusual one.
The
application for extension of time was ma.de before the
time fixed by the High Court for payment of deficit
court fee had actually run out.
Tha.t application
appears not to ha.ve been considered a.t a.II, in view of
the peremptory order which ha.d been passed earlier
by the Division Bench hearing the appeal, mainly
because on the da.te of the hearing of the petition for
extension of time, the period had expired. The short
question is whether the High Court, in the circum·
11ta.nces of the case, was powerless to enlarge the time,
even though it ha.d peremptorily fixed the period for
payment. If the Court had considered the application
a.nd rejected it on merits, other.considerations might
have a.risen; but the High Court in the order quoted,
went by the letter of the original order under which
time for payment had been fixed. Section 148 of the
Code, in terms, a.Hows extension of time, even if the
original period fixed has expired, and s. 149 is equally
libero.I. .A fortiori, those sections could be invoked by
the a.pplica.nt, when the time ha.d not a.ctua.Ily expired.
Tha.t the application was filed in the va.ca.tion when a
Division Bench wa.s not sitting should ha.ve been considered in dee.ling with it even on July 13, 1954, when
it was actually heard. The order, though passed after
the expiry of the time fixed by the original judgment,
would have operated from July 8, 1954. How undesirable it is to fix time peremptorily for a. futw:e happening which leaves the Court powerless to deal with
evenj;s tha.t might a.rise in between, it is not necessary
to decide in this a.ppea.l. These orders turn out, often
enough to be inexpedient. Such procedure.I orders,
though peremptory (conditional decrees a.pa.rt) a.re, in
essence, in terrorem, so tha.t dilatory litigants might
768
SUPREME COURT REPORTS
[1961]
z96x
put themselves in order and avoid delay. They do not,
M 114 IA R
D however, completely estop a Court from taking note-
•
n v. am
as of events and circumstances which happen within the
Ganga Das
time fixed. For example, it cannot he said that, if the
appellant had started with the full money ordered to
HidayatullaA J. he paid and came well in time but was set upon and
robbed by thieves on the day previous, he could not
ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of
the Medes and the Persians. Cases are known in which
Courts have moulded their practice to meet a situation
such as this and to have restored a suit or proceeding,
even though a final order had been passed. We need
cite only one such case, and that is Lachmi Narain
Marwari v. Balmakund Marwari (').
No doubt, as
observed by Lord Phillimore, we do not wish to place
an impediment in the way of Courts in enforcing
prompt obedience and avoidance of delay, any more
than did the Privy Council. But we are of opinion that
in this case the Court could have exercised its powers
first on July 13, 1954, when the petition filed within
time was before it, and again under the exercise of its
inherent powers,. when the two petitions under s. 151
of the Code of Civil Procedure were filed. If the High
Court had f(llt disposed to take action on any of these
occasions, ss. 148 and 149 would have clothed them
with ample power to do justice to a litigant for whom
it entertained considerable sympathy, but to whose
aid it erroneously felt unable to come.
In our opinion, the High Court was in error on
both the occasions. Time should have been extended
on July 13, 1954, if sufficient gause was made out and
again, when the petitions were made for the exercise
of the inherent powers. We, therefore, set aside the
order of July 13, 1954, and the orders made subsequently. We need not send the case back for the
trial of the petition made on July 8, 1954, because that
would be only productive of more delay. Non..e has
appeared to contest the appeal in this Court. We have
perused the application and the affidavit, and we are
satisfied that sufficient cause had been made out for
(1) (19z5) 1.1 .. R. 4 Patna 61 (P.C.).
3 S.C.R.
SUPREME COURT REPORTS
769
extension of time.
We, accordingly, set aside the
r96r
dismissal of the appeal and the suit, and grant the
-
appellant two months' time from today for payment Mahanth Ram Das
of the defi_cit court fee.
We only hope that,. after the
Gan;~ Das
lesson whrnh the appellant has learnt, he will not ask
the Court perhaps vainly, to show him any more Hidayatullah J.
indulgence. · There will be no order about costs in this
Court as the appeal was heard ex parte.
Appeal allowed.
KAUSHALYA DEVI AND OTHERS
v.
BAIJNATH SAYAL AND OTHERS.
(P. B. GAJENDRAGADKAR and K. N. WANCHOO JJ.)
Suit against Minor-Preliminary decree on consent by guardian
without leave of court-If a nullity-If can be set aside in appeal
against final decree-Code of Civil Procedure, r908 (Act V of r908),
s. 97, 0. 32, r. 7.
Order 32, r. 7(2) of the Code of Civil Procedure, which is
intended to protect the interest of the minor, really means that
an agreement or compromise entered into on behalf of the minor
in contravention of 0. 32, r. 7(1) is voidable only at the instance
of the minor and not at the instance of any other party to it.
Such contravention does not render the agreement or decree a
nullity and the same has to be avoided in an appropriate
proceeding.
Manohar Lal v. Jadu Nath Singh (19o6) L.R. 33 I.A. 128,
referred to.
Chhabba Lal v. Kallu Lal (1946) L.R. 73 I.A. 52, Jamna Bai
v. Vasanta Rao (1916) L.R: 43 I.A. 99 and Khiarajmal v. Daim
(1904) L.R. 32 I.A. 23, held inapplicable.
Where a preliminary decree is passed in non-compliance
with the provision of 0. 32, r. 7(1), the remedy of the minor is by
way of an appeal against that decree and not against the final
decree since s. 97 of the Code is a bar to the challenging of the
preliminary decree in an appeal against the final decree.
Consequently, in a suit for the partition where preliminary
decree by consent was passed against the minor in contravention
o't.O. 32, r .. 7(1) and that decree having been sought to be set
aside in an appeal from the final decree the High Court held that
s. 97 of the Code precluded the appellant from doing so.
Held, that the decision of the High Court was correct and
inust be affirmed.
·
Februaf'y 9.