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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  1856   OF 2016 (Arising out of SLP (C) No.12330 of 2011)

NASHIK MUNICIPAL CORPORATION                        ....Appellant

Versus

M/S. R.M. BHANDARI & ANR.                   ....Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. The present appeal impugns the order of High Court of  

Judicature at Bombay dismissing Civil Application No.2305 of 2010  

in Writ Petition No.1077 of 2010, filed by the appellant declining to  

extend the time in depositing the cost of Rs.25,000/-  in terms of  

the order dated 03.05.2010 passed by the High Court in the said  

Writ Petition No.1077 of 2010.

3. There has been a chequered history of litigation between  

the parties for about two decades leading to filing of the present  

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appeal.  The appellant being a municipal  corporation had invited  

public  tender  for  construction  and  concreting  of  the  area  from  

Gadage  Maharaj  Bridge  to  Rokadoba  Sandwa,  to  which  the  

respondents emerged as successful bidders.  The respondents were  

to  commence  the  work  on 23.01.1990 and the  same was  to  be  

completed on or before 22.10.1990.  However, the respondents did  

not show any progress in the work and consequently the appellant-

corporation withdrew the work from the respondents and allotted  

the same to M/s. N.H. Company Pvt. Ltd. for the purpose of getting  

the  work  completed,  for  which the  appellant  suffered  an excess  

amount of Rs.29,76,740/-.

4. The appellant-corporation filed a suit being Special Civil  

Suit No.339 of 1991 against the respondents seeking recovery of  

the said amount before the Civil Judge (Senior Division), Nashik.  

The respondents also preferred Special Civil Suit No.171 of 1991  

against  the  appellant  for  a  declaration  and  recovery  of  amount  

before  the  Civil  Judge  (Senior  Division),  Nashik.   The  court  

disposed  of  both  the  suits  vide  common  judgment  dated  

18.10.1994  thereby  decreeing  the  suit  of  the  appellant  and  

dismissed the suit filed by the respondents.  The court directed the  

respondents to pay an amount of Rs.29,40,366/- to the appellant  

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alongwith interest at the rate of 18% per annum. Being aggrieved,  

the respondents filed the appeal being First Appeal No.344 of 1995  

challenging the decree dated 18.10.1994 before the High Court of  

Bombay.   Alongwith  the  appeal,  the  respondents  also filed Civil  

Application No.2330 of  1995 for  stay of  the decree.   Vide order  

dated 12.06.1995, the High Court granted stay of  the decree on  

condition  that  the  respondents  will  deposit  the  entire  decretal  

amount before the lower court within eight weeks failing which the  

stay shall stand vacated automatically.  The respondents did not  

deposit  the  decretal  amount.  Thereafter,  the  said  First  Appeal  

No.344  of  1995  was  dismissed  as  withdrawn  vide  order  dated  

13.01.2009.   

5. The  appellant  had  preferred  an  execution  petition  in  

Special Darkhast No.49 of 2002 for execution of the decree dated  

18.10.1994.   The said execution petition was dismissed for default  

of the decree holder vide order dated 29.07.2006.  The appellant  

then  preferred  C.M.A.  No.155  of  2006  on  28.08.2006  seeking  

restoration of the execution petition.  Relying upon the judgment in  

Mhatarba  Laxman  Dongare  (Dead)  thr.  L.Rs  vs. Central  Bank  of   

India and Ors.,  reported in 2005 (2) ALL. M.R. 742, the executing  

court vide order dated 29.10.2007 declined to restore the execution  

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petition-Special  Darkhast  No.49  of  2002.   The  appellant  then  

preferred  the  second  execution  petition  being  Special  Darkhast  

No.40 of  2008 and the same was dismissed as being barred by  

limitation.   

6. The appellant challenged the said order of the executing  

court in Writ Petition No.6622 of 2009.  While the said writ petition  

was pending, the appellant also filed  another Writ Petition No.1077  

of  2010  challenging  the  order  dated  29.10.2007  passed  by  the  

executing court rejecting the appellant’s application for restoration  

of  the  earlier  Special  Darkhast  No.49  of  2002.  Both  the  writ  

petitions  were   disposed  of  by  the  High  Court  by  the  common  

judgment dated 03.05.2010 and the High Court allowed the writ  

petition No.1077 of 2010 and the order dated 29.10.2007 passed  

by the executing court was set aside and Special Darkhast No.49 of  

2002 was restored.  However, the High Court imposed the cost of  

Rs.25,000/-  upon  the  appellant  as  a  condition  precedent  for  

restoration of the execution petition.  Challenging the said order  

dated 03.05.2010, respondents preferred SLP (C) No.21975 of 2010  

before this Court and the said SLP was dismissed as withdrawn  

vide order dated 16.08.2010.   

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7. Pursuant to  the order  passed in W.P.  No.1077/2010,  

the  appellant-corporation  filed  applications  before  the  executing  

court  on  30.06.2010  requesting  the  court  to  accept  the  cost  of  

Rs.25,000/- and to restore Special Darkhast No.49 of 2002.   Those  

applications were rejected by the executing court  interalia stating  

that  the  time  limit  granted  by  the  High  Court  was  over  on  

28.06.2010 and that the court had no power to extend the time  

granted by the High Court. In these circumstances, the appellant  

preferred  Civil  Application  No.2305  of  2010  in  Writ  Petition  

No.1077 of  2010 under Section 148 C.P.C.  seeking extension of  

time  for  depositing  the  cost  of  Rs.25,000/-  and  the  same  was  

dismissed by the impugned order.

8. Learned  counsel  for  the  appellant  Mr.  S.M.  Jadhav  

submitted  that  the  High  Court  erred  in  not  taking  note  of  the  

explanation given by the appellant for the delay in depositing the  

cost  and  the  High  Court  was  not  justified  in  dismissing  the  

application.   It  was  contended  that  the  High  Court  failed  to  

consider that the right of the appellant for invoking the jurisdiction  

of the court under Section 148 C.P.C. is an independent right and  

the same cannot be curtailed in view of the order passed by this  

Court in SLP (C) No.21975 of 2010.   It was further submitted that  

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the High Court failed to consider that withdrawal of the first appeal  

by the respondent before the High Court was at their own risk and  

the  appellant’s  right  to  restore  the  execution petition cannot  be  

curtailed on that basis.     

9. Per  contra,  learned  counsel  for  the  respondents  

Mr.  Aniruddha P.  Mayee  submitted  that  the  appellant  offered  a  

vague  explanation  for  the  delay  in  depositing  the  cost  and  the  

appellant cannot take advantage of its own wrong.  It was further  

contended  that  since  the  execution  petition  was  dismissed,  the  

respondents have withdrawn the first appeal and by restoration of  

the execution petition at this distant point of time the respondents  

cannot be rendered remediless and the learned counsel prayed for  

liberty to restore the first appeal.   

10. Upon consideration of  the rival contentions, the point  

falling  for  consideration  is  whether  or  not  the  court  has  the  

discretion to enlarge the time for doing any act prescribed by the  

Code or allowed by the Code.   

11. Section 148 C.P.C. provides for enlargement of the time  

by the court.  Section 148 C.P.C. reads as under:

S.148. Enlargement of time.-  Where any period is fixed or  granted by the Court for the doing of any act prescribed or allowed  by this Code, the Court may, in its discretion, from time to time,  enlarge such period not exceeding thirty days in total, even though  the period originally fixed or granted may have expired.

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A plain reading of the above would show that when any period or  

time is granted by the court for doing any act, the court has the  

discretion from time to time to enlarge such period even if the time  

originally  fixed  or  granted  by  the  court  has  expired.  Previously  

discretion was  given to  the  court  to  enlarge  the  period  fixed  or  

granted by the court for any act prescribed or allowed by the Code.  

The C.P.C. (Amendment) Act, 1999 puts a limit of thirty days on the  

enlargement of such period.  The words “not exceeding thirty days  

in total” have been inserted with a view to curtail procedural delay  

caused by any party to the suit  or proceeding.   Enlargement of  

time, whether one-time or phased, cannot exceed thirty days.

12. Considering the reason for the delay in depositing the  

cost, as noticed earlier, the High Court allowed the Writ Petition  

No.1077  of  2010  vide  order  dated  03.05.2010  and  restored  the  

Special Darkhast No.49 of 2002 subject to the payment of cost of  

Rs.  25,000/-  to  the respondents  within  a  period  of  eight  weeks  

from the date of the order.  The appellant stated that the copy of  

the order dated 03.05.2010 was received in the office of its Legal  

Department on 12.05.2010 and the Accounts Department gave its  

approval  for  the  payment  of  cost  on  26.05.2010.  The  Legal  

Department  thereafter  prepared  voucher/bill  for  the  amount  of  

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Rs.25,000/-  for  being  paid  in  the  name  of  Civil  Judge  (Senior  

Division), Nashik and the same was approved on 03.06.2010 and  

after  completing  the  procedural  formalities,  the  Accounts  

Department issued the cheque on 15.06.2010. It is further averred  

that the applications were presented before the executing court to  

accept the cheque on 30.06.2010 and the said applications were  

dismissed interalia holding that the time limit granted by the High  

Court  was  over  on 28.06.2010 and the  executing  court  had  no  

power to extend the time granted by the High Court.  The executing  

court  was  correct  in  saying  that  it  could  not  extend  time  for  

depositing the cost as the same had been stipulated by the High  

Court.  The High Court has declined to extend the time mainly on  

the  ground  that  the  SLP(C)  No.21975  of  2010  filed  by  the  

respondents was dismissed as withdrawn and that the respondents  

have lost their right to challenge the order passed by the Court in  

Writ Petition No.1077 of 2010.  The High Court while declining to  

enlarge the time to deposit the cost neither took into consideration  

the  sequence  of  dates  and  events  stated  by  the  appellant-

corporation  nor  the  explanation  offered  by  the  appellant-

corporation for the delay in depositing the amount.  This, in our  

view,  is not correct.   

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13. In  Chinnamarkathian alias Muthu Gounder and Anr.  v.  

Ayyavoo alias Periana Gounder and Ors.,  (1982) 1 SCC 159, this  

Court called in the principle of equity and held that the court has  

the jurisdiction to examine alteration or modification which may  

necessitate  extension  of  time.   In  para  (15),  this  Court  held  as  

under:-

“….It is a well accepted principle statutorily recognised in Section  148 of the Code of Civil Procedure that where a period is fixed or  granted by the court for doing any act prescribed or allowed by the  Code, the court may in its discretion from time to time enlarge such  period even though the period originally fixed or granted may expire.  If a court in exercise of the jurisdiction can grant time to do a thing,  in  the  absence  of  a  specific  provision  to  the  contrary  curtailing,  denying or withholding such jurisdiction, the jurisdiction to grant  time  would  inhere  in  its  ambit  the  jurisdiction  to  extend  time  initially fixed by it. Passing a composite order would be acting in  disregard  of  the  jurisdiction  in  that  while  granting  time  simultaneously the court denies to itself the jurisdiction to extend  time. The principle of equity is that when some circumstances are to  be taken into account for fixing a length of  time within which a  certain  action  is  to  be  taken,  the  court  retains  to  itself  the  jurisdiction  to  re-examine  the  alteration  or  modification  of  circumstances which may necessitate extension of time. If the court  by its own act denies itself the jurisdiction to do so, it  would be  denying to itself the jurisdiction which in the absence of a negative  provision, it undoubtedly enjoys….”

14. Reference  may  also  be  made  to  the  decisions  of  this  

Court in Jogdhayan v. Babu Ram and Ors., (1983) 1 SCC 26, Johri  

Singh  v.  Sukh  Pal  Singh  and  Ors.,  (1989)  4  SCC  403,  Ganesh  

Prasad Sah Kesari and Anr. v. Lakshmi Narayan Gupta, (1985) 3  

SCC 53 and D.V. Paul v. Manisha Lalwani, (2010) 8 SCC 546.

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15. In terms of Section 148 C.P.C. court has the discretion  

to extend the time.  The words “not exceeding thirty days in total”  

have  been  inserted  by  the  C.P.C.  (Amendment)  Act,  1999.  

Observing that if the act could not be performed within thirty days  

for the reasons beyond the control of the parties, the time beyond  

maximum thirty days can be extended under Section 151 C.P.C.,  

in  Salem  Advocates  Bar  Association,  T.N.  vs.  Union  of  India  

(2005) 6 SCC 344, this Court  in para (41) held as under:

“41. The amendment made in Section 148 affects the power of the  court to enlarge time that may have been fixed or granted by the  court for the doing of any act prescribed or allowed by the Code. The  amendment provides that the period shall  not exceed 30 days in  total.  Before  amendment,  there  was  no  such  restriction  of  time.  Whether the court has no inherent power to extend the time beyond  30 days is the question. We have no doubt that the upper limit fixed  in Section 148 cannot take away the inherent power of the court to  pass orders as may be necessary for the ends of justice or to prevent  abuse of  process of  the court.  The rigid operation of  the section  would lead to absurdity. Section 151 has, therefore, to be allowed to  operate fully. Extension beyond maximum of 30 days, thus, can be  permitted  if  the  act  could  not  be  performed  within  30  days  for  reasons beyond the control of the party. We are not dealing with a  case where time for doing an act has been prescribed under the  provisions of the Limitation Act which cannot be extended either  under Section 148 or Section 151. We are dealing with a case where  the time is fixed or granted by the court for performance of an act  prescribed or allowed by the court.”

16. Coming  to  the  finding  of  the  High  Court  that  the  

respondents have lost their right to challenge the order passed by  

the High Court in Writ Petition No.1077 of 2010, it is true that SLP  

(C) No.21975 of 2010 was dismissed by this Court on the ground  

that cost was not deposited by the appellant-corporation. But that  

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was not of much significance. In the application before the High  

Court,  what  was  important  was  that  whether  the  appellant  has  

made  out  a  case  for  extension  based  on  which  time  can  be  

extended.   From  the  sequence  of  events,  in  our  opinion,  the  

appellant-corporation has explained the reasons for the delay in  

depositing the cost and the time ought to be extended to deposit  

the cost.    

17. We find substance in the submission of the respondents  

that since the execution petition was dismissed, the respondents  

have  withdrawn  the  First  Appeal  No.344  of  1995  and  the  

respondents cannot be deprived of the opportunity of maintaining a  

first appeal for challenging the decree passed against them.  While  

extension of time is granted to the appellant to deposit the cost, the  

respondents cannot be rendered remediless and in our view, the  

respondents  are  to  be  given  liberty  to  have  their  first  appeal  

restored by making necessary application before the first appellate  

court.  

18. In the result, the impugned order is set aside and this  

appeal is allowed.  The appellant-corporation shall deposit the cost  

of  Rs.25,000/-  as  directed  by  the  High  Court  in  Writ  Petition  

No.1077 of 2010 within a period of four weeks from today and on  

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such deposit, Special Darkhast No.49 of 2002 shall stand restored  

and the same shall be proceeded with in accordance with law.  The  

respondents are at liberty to have the first  appeal filed by them  

being Appeal No.344 of 1995 restored by making an application.  

We make it clear that we have not expressed any opinion on the  

merits of the matter.  In the facts and circumstances of the case,  

there is no order as to costs.

        ………………………….CJI       (T.S. THAKUR)

…………………………….J           (R. BANUMATHI)  

New Delhi; February  26, 2016  

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