1. This is a petition under S. 115, C.P. Code by the respondents in C.M.P. No. 621 of 1976 on the file of the court of the Subordinate Judge, Kancheepuram. That Civil Miscellaneous Petition was one filed by the respondent herein for condonation of a delay of 555 days in re-presenting the appeal before the learned Subordinate Judge. Notice of this petition issued to the petitioners herein and they opposed the court condoing the delay. Overruling the objection, the court condoned the delay, and it is that order that is sought to be revised by the present Civil Revision petition.

2. As soon as the Civil Revision Petition came up for admission, I felt a doubt whether the Civil Revision Petition was competent at all in view of the fact that the delay that was condoned in the present case was not with reference to the proper presentation of the appeal, but with reference to the re-presentation of the appeal. In view of this doubt, I directed notice of this question to be given to the Advocates Association, Madras, the Bar Association, Madras, and the Women Lawyers, Association, Madras, and in response to my notice, they are represented before this court now and oppose the stand of the learned counsel for the petitioners and contend that this Civil Revision Petition is not maintainable.

3. Consequently, the question for consideration is whether the Civil Revision Petition is maintainable.

4. Mr. K. N. Balasubramanian, learned counsel for the petitioners, at on stage, sought to contend that the delay involved in the present case is not a delay in the re-presentation of the papers, but a delay in proper presentation of the appeal itself. I declined to allow Mr. Balasubramanian, to raise this point, because, the entire controversy proceeded before the lower court only on the basis that the delay involved was in the re-presentation of the appeal, and not in the proper presentation of the appeal, and the grounds of Civil Revision Petition before this court do not also contend that the delay involved in the present case was with reference to the proper presentation of the appeal and not with reference to the re-presentation of the papers. Under these circumstances, I proceed only on the basis that the delay involved in the present case is only in re-presentation.

5. Mr. Balasubramanian contends that O. 41, R. 3, C.P.C. makes specific provision as to what should be done when there is a defect in the memorandum of appeal that was presented and it gives three alternatives to the court, namely, to reject the memorandum of appeal or return to the appellant the papers for the purpose of being amended within a time to be fixed by the court or to be amended then and there. When, pursuant to this power of the court, the appeal papers are returned for amendment within a time to be fixed, S. 148, C.P.C. is immediately attracted and the power to excuse the delay is traceable to that section and an order passed under S. 148 is revisable under S. 115, C.P.C. As against this contention, the counsel representing the three bodies referred to above contend that an order passed by the court condoning the delay is not a judicial order at all, because there was no lis at that stage between any two parties and consequently, that order cannot be the subject-matter of a revision petition at all. In fact, Mr. Ratnam, learned counsel representating the Advocates Association, Madras, drew my attention to a decision of this court in In re: Chintapatla Venkatanarasimha Ramachandra Rao and others A.I.R. 1933 Mad. 358, [LQ/MadHC/1932/242] wherein this court has held that any time that is allowed for re-presentation is only by way of concession, and therefore, with reference to such a concession granted by the court a respondent who had not even received the notice of the main case which would be issued only after the main case is admitted, has no locus standi to object to the granting of the said concession. In this particular case, as I pointed out already, notice was given to the petitioners herein and according to the learned counsel for the Association, such notice was unnecessary and the fact that an unecessary notice was given would not clothe the petitioners herein with the power to object to the grant of the concession and if this concession is given overruling the objection, to take up the matter further by way of revision.

6. I am of the opinion that this contention is sound. S. 148, C.P.C. is general in nature, and certainly, that will come into operation only where the court fixes a time, the alteration or extension of which will have the effect of affecting the rights of somebody else. But, when there is no delay in the proper presentation of the appeal papers, but there is a delay only in the re-presentation of the appeal papers, there is no question of the interest of anybody else being affected and, therefore, a court being called upon to give notice.

7. Even assuming the validity of the argument linking O. 41, R. 3, with S. 148, C.P.C., it may also be pointed out that when papers filed before a court are returned for rectifying certain defects, such a return is not always made under O. 41, R. 3, C.P.C. O. 41, R. 3 has only a limited application. O. 41, R. 3(1) states

Where the memorandum of appeal is not drawn up in the manner herein before prescribed, it may be. returned to the appellant for the purpose of being amended within a time to be fixed by the Court.

Thus, this provision is concerned only with the return made on the ground that the memorandum of appeal has not been drawn up in the manner prescribed in Rr. 1 and 2 of O. 41, and all other returns will be outside O. 41, R. 3. Obviously, these returns will be only in the exercise of the inherent powers of the court under S. 151, and consequently, the condonation of the delay in re-presentation after such return will also be in the exercise of the inherent powers of the court under S. 151, C.P.C. and therefore, S. 148. C.P.C. will not be attracted.

8. I may point out in this context the difference between the condonation of delay in the proper presentation of a particular proceeding pursuant to S. 5 of the Limitation Act and the condonation of delay in the representation of a particular proceeding obviously under the inherent powers of the court under S. 151, C.P.C. In the former case, there is a specific provision in the statute, namely, the Limitation Act, which imposes an obligation on the court itself suo motu to reject a proceeding if it is barred by limitation. That strictness is not available or applicable to a case of a delay in the re-presentation of the proceeding in question. Consequently, the provisions and considerations applicable to excusing the delay under S. 5 of the Limitation Act will not apply to the question of excusing the delay in re-presenting the papers and, therefore, the considerations relevant to excusing the delay with reference to petitions, disposable under the Limitation Act, will bear no analogy to those relevant to a decision of the question in the present controversy. When Mr, K. N. Balasubramanian relied on S. 148, C.P.C., I asked him to bring to my notice any decision of any court holding that when delay in the re-presentation of papers is excused by a court, that power is exercised only under S. 148, C.P.C. so as to justify the party who opposed the condonation of the delay taking up the matter in revision. The learned counsel frankly conceded that he is not able to put his finger on any such decision. Under these circumstances, I have proceeded on broad considerations, and in particular with reference to the distinction between the delay in the presentation of a proceeding and the delay in the re-presentation of the papers with reference thereto. In view of the basic difference between the two, I am of the opinion that the considerations relevant to the former will not apply to the latter, and in an application for excusing the delay in re-presenting the papers in any proceeding, whether it be a suit, a civil revision petition, a first appeal or a second appeal in any court, notice to the respondent in the main case is not necessary, and even if such notice is given to the respondent and he is heard, and overruling his objection the delay is condoned, he cannot be said to have been aggrieved in the sense of there being a judicial determination against him so as to entitle him to approach the High Court under S. 115, C.P.C. In view of this, I hold that this petition is not maintainable and reject the same.

9. I record my appreciation of the assistance rendered by Mr. V. Ratnam, Mr. Raghavan and Mrs. Gomathi, counsel representing the three Associations referred to already.