Judgment:
ORDER
1. The important question that arises in this petition is about the validity of delivery of the mmovable property effected in the interregnum between the date of the expiry of the conditional order of stay of execution of the decree on payment of a certain amount and the date of the subsequent order extending time for payment of the said amount.
2. The petitioner herein has filed the above second appeal No. 81 of 1986 against the concurrent findings of the courts below decreeing the suit in favour of the respondent for delivery of possession of the suit property and for future mesne profits. Along with the appeal the petitioner filed C.M.P. 716 of 1986 for an order of stay of execution of the decree till the disposal of the appeal. On 19-2-1986 Shanmukham J. passed the following order -
'There will be stay on the petitioner depositing a sum of Rs. 8000 to the credit of the suit in the trial court within 8 weeks from this date and a further sum of Rs. 2000 on or before 16 weeks from this date. In default of any one payment the stay will stand vacated.'
The period of deposit of the first instalment expired on 19-4-1986. But, the petitioner did not pay the said amount. But, before the expiry of the date the petitioner filed on 441986 C.M.P. 8401 of 1986 for modification of the order in C.M.P. 716 of 1986 and for further extension of time for payment. This petition came up for orders before Shanmukharn J. on 2-7-1986 and the learned Judge modified the order and directed the petitioner to deposit Rs. 8000 in all within four weeks from that date. But in the meanwhile the respondent decree holder acted with due diligence and took delivery of the suit property through court on 18-6-1986. But this fact has obviously not been brought to the notice of the learned Judge when he passed the subsequent order on 2-7-1986, in C.M.P. 8401 of 1986. It is the validity of this delivery that is challenged in this petition for redelivery.
3. It is strenuously contended by Mr. M. N. Padmanabhan, learned counsel for the petitioner, that the subsequent order of Shanmukham J. dated 2-7-1986 in C.M.P. 8,401 of 1986 modifying the earlier order and extending the time for payment for a further period of four weeks dates back to the date of the petition viz. 4-3-1986, that the stay must be deemed to have been in. force on 18-6-1986 when the respondent took delivery of the property, the delivery is therefore invalid and redelivery must be ordered. As I shall presently show, the contention is unsound and untenable. As per the original order dated 19-2-1986, the first payment had to be made on or before 19-4-1986 and as the petitioner defaulted to make that payment the stay stood vacated. There was, therefore, no legal impediment for the decree holder -to take delivery of the immovable property in execution of the decree and the delivery effected on 18-6-1986 does not suffer from any infirmity. The subsequent order dated 27-1986 extending the period for payment does not have the effect of rendering invalid the delivery already effected on 18-6-1986, when there was no legal bar for such delivery. It is not the delivery effected lawfully on 18-6-1986 that has become ineffectual by the subsequent order of the court but it is the subsequent order of the court, that is ineffectual so far as the delivery portion of the decree is concerned.
4. Section 148, C.P.C., which 'is pressed into service by Mr. M. N. Padmanabhan, learned counsel for the petitioner, does not help him. It enables the court which has fixed or granted any period for doing any act prescribed or allowed by the Code to enlarge the said period from time to time even though the period originally fixed or granted may have expired. The section does not render invalid any act lawfully done in the
interregnum when there was no prohibition against the said act. Mahanth Ramdas v. Gangadas, : [1961]3SCR763 on which much reliance is placed by Mr. M. N. Padmanabhan, has no application to the facts of the case on hand. There, the High Court passed a peremptory order that the appeal shall 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 the money made an application for extension of time before the expiry of the time granted. But the High Court dismissed the application. On appeal with a certificate of the High Court, the Supreme Court held that such peremptory orders do not completely stop a court from taking
note of the events and circumstances, which happen within the time fixed and time should have been extended in the circumstances of the case. I am unable to see how this decision has any relevance here. The validity of the delivery taken or any act lawfully done in the interregnum when there was no bar, was not in question before the Supreme Court. The said decision has, therefore, no application to the case on hand. A case almost similar to the instant one came up for consideration before K. Veeraswami J. (as he then was) in Doraiswami Chettiar v. Govindaswarm Chettiar, : AIR1963Mad207 . This Court originally gave a conditional interim stay of execution of the decree of the lower court in respect bf a pathway and delivery of possession of certain tamarind trees. The condition for payment was not complied with within the time allowed viz. 1-7-1952. The decree holder lost no occasion to execute the decree for possession and got delivery on 4-7-1952. A fresh application was filed on 7-7- 1982, asking this Court to extend the time for depositing the sum due to be deposited on 1-7-1952, by reviewing the earlier order and relieve the petitioner of the consequences resulting from the non-payment on the due date and allowing him to continue in possession of the suit properties. The learned Judge observed :-
'Where a conditional order has been made and the condition is not complied with, even though there is no clause in the order providing for the effect of default, the interim order ceases to operate. In such circumstances, there was no impediment in the way of the respondent executing the, decree for possession and the delivery of possession of the trees to the respondent on:, 4-7-1952, was therefore proper and lawful.'
The case on hand is stronger still, for in the original order passed by Shanmukham J. on 19-2-1986 it has been expressly laid down that 'in default of any one payment, the stay will stand vacated'. N. M. N. Padmanabhan learned counsel for the petitioner, tried to distinguish this decision on the ground that the petition for extension of time has been filed after the expiry of the time originally fixed and even after delivery, whereas in the case on hand this petition has been filed even before the expiry of the time originally granted. But, that is a distinction without a difference. The question is not whether the petition for extension of time has been made before or after the expiry of time originally fixed or before or after the delivery but whether the subsequent order extending time has the effect of nullifying the delivery effected at a time when there was no legal bar for taking delivery, I have no doubt that the subsequent order has no such effect. The delivery effected on 18-6-1986 is, therefore, perfectly valid and is not liable to be impugned. The petitioner is not entitled to seek redelivery.
5. In the result, the petition fails and is dismissed. No costs. I
6. Petition dismissed.