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Bhujangrao Ganpati Vs. Sheshrao Rajaram - Court Judgment

LegalCrystal Citation
SubjectContract
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Application No. 431 of 1971
Judge
Reported inAIR1974Bom104; (1973)75BOMLR772; 1973MhLJ1034
ActsSpecific Relief Act, 1963 - Sections 28; Code of Civil Procedure (CPC), 1908 - Sections 148
AppellantBhujangrao Ganpati
RespondentSheshrao Rajaram
Appellant AdvocateD.Y. Lovekar, Adv.
Respondent AdvocateM.P. Kanade, Adv.
Excerpt:
.....a decree which provides that the suit is to stand dismissed if the payment is not made within the time fixed, is a self operative final decree - the court becomes functus officio and has no power to grant an extension of the time fixed by the decree - - in case of failure of the defendant so to do, plaintiff should be entitled to get the sale deed executed and registered in execution of the decree through court. ' it is an admitted position that the plaintiff (present respondent) failed to make the deposit in respect of the costs of execution and registration of the sale deed within the time fixed by the said decree, and on the 6th of september 1968, he filed an application praying for condonation of delay in depositing the said costs within the time fixed by the decree, on the..........make the deposit in respect of the costs of execution and registration of the sale deed within the time fixed by the said decree, and on the 6th of september 1968, he filed an application praying for condonation of delay in depositing the said costs within the time fixed by the decree, on the ground that after the date of the decree he had been ill and there was no other person available to him to make the deposit on his behalf. it may be mentioned that on the same day, the plaintiff also filed an execution application requesting the court to direct the defendant to execute the necessary sale deed in terms of the decree. both the applications were opposed by the defendant present petitioner who contended that, in view of non-compliance with the terms of the decree, the suit automatically.....
Judgment:
ORDER

1. This is an application to revise an order passed by the learned District Judge, Parbhani, reversing the order of Mr. S.Y. Gambhir, Civil Judge (J. D.). Sailu, dated the 30th of August 1969 refusing to grant extension of time under a decree for specific performance on the ground that the Court had no power to do so. It is not necessary for the purpose of this application to state the facts prior to the decree. Suffice it to say that, on the 30th March 1968, a conditional decree for specific performance was passed in favour of the present respondent which was in the following terms :-

'Defendant shall execute a sale deed in respect of the suit land in favour of the plaintiff. The plaintiff shall deposit in Court the costs for the execution and the registration of the sale deed within one month from this date. In case the plaintiff fails to deposit the costs in Court defendant shall execute the sale deed and get it registered. In case of failure of the defendant so to do, plaintiff should be entitled to get the sale deed executed and registered in execution of the decree through Court.'

It is an admitted position that the plaintiff (present respondent) failed to make the deposit in respect of the costs of execution and registration of the sale deed within the time fixed by the said decree, and on the 6th of September 1968, he filed an application praying for condonation of delay in depositing the said costs within the time fixed by the decree, on the ground that after the date of the decree he had been ill and there was no other person available to him to make the deposit on his behalf. It may be mentioned that on the same day, the plaintiff also filed an execution application requesting the court to direct the defendant to execute the necessary sale deed in terms of the decree. Both the applications were opposed by the defendant present petitioner who contended that, in view of non-compliance with the terms of the decree, the suit automatically stood dismissed at the end of one month from the date of that decree and the court had no jurisdiction to condone the delay, or to extend time, as applied for. The learned trial judge upheld that contention of the defendant and rejected the application for extension of time. As a necessary corollary, he also dismissed the execution application. On appeal to the District Court, the learned District Judge, relying on the decision of a single judge of this court in the case of Babulal V. jagannath : (1970)72BOMLR835 , held that in view of the provisions of section 28(1) of the specific Relief Act, 1963, the decree was not a final decree and the court had jurisdiction to grant extension of time. He, therefore remitted the proceedings back to the trial court for the disposal of that application of merits, it is against that order that the original defendant has approached this court in revision.

2. Under Section 28 of the specific relief Act, 1963, at the time of passing a decree for specific performance of a contract for the sale of immovable property, the court has undoubtedly the power to direct payment by the purchased of the price or other sum by a fixed date. The said section, however, proceeds to lay down that, in such a case, if the purchaser fails to pay the amount within the time fixed by the decree for specific performance, the vendor could apply in the same suit to have the contract rescinded and, on such application, the court may order rescission of that contract and proceed to give consequential directions for the restoration of any benefits received thereunder.

3. In the case of Babulal V. Jagannath cited by me earlier which was relied upon by the lower appellate court, the facts were, no doubt identical with the facts of the present case. Relying upon the language of Section 28(1) my brother Bhole held (at P. 837) that the terms of the said section itself clearly contemplated that the court had the power to grant an extension of time. He also referred to certain other decisions in which the same view had been taken. I agree with the view taken by my brother Bhole in the said case that in a conditional decree for specific performance of the nature contemplated by Section 28(1) of the specific Relief Act, 1963, the court would have the power to grant an extension of the time for payment fixed under that decree. In my opinion, however, the decree in the present case is not a decree under section 28(1) of the specific Relief Act, 1963, in so far as it is a self-operative final decree which provides in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. In the case of such a decree, it is impossible to apply the provisions of Section 28 of the specific Relief Act, 1963, which , for instance, provide for a subsequent application for the recission of the contract itself, and for certain consequential orders. It is true that in Babulala's case which was decided by my brother Bhole also. the decree was in the same form as in the present case but, I am afraid , there can be no question of my being bound by authority in the matter of the proper construction of the decree before me. In any event, there is an unreported decision of a Division Bench of this court by which I would be bound, a fortiori, in which also the decree was in precisely the same form as in the present case, in the said case were to deposit in the trial court within one month of the receipt of the papers of the appeal a certain sum, and further provided that in case the plaintiffs failed to make that deposit within the time prescribed the said suit was to stand dismissed with costs. A Division Bench of the Court consisting of S. T. Desai and Datar, JJ., by their unreported judgment dated 19th August 1959, held in the said case (Civil Application No. 3964 of 1958) that the failure on the part of the plaintiffs to carry out the terms of the decree had automatically resulted in the disposal of the suit and the Court had become functus officio and had no power to grant and extension of the time fixed by the decree. It is true that in a subsequent case the Supreme Court has in the case of Mahanth Ram v. Ganga Das. : [1961]3SCR763 taken the view that section 148 of the code of Civil Procedure empowers the court to deal with events that might arise subsequent to an order, for the purpose of enlarging time for payment even though it had been peremptorily fixed, but in that connection the Supreme Court observed as follows (para 5):-

'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. they do not, however. completely estop a court form taking note of events and circumstances which happen within the time fixed'.

It is, therefore. quite clear that whilst laying down, in effect, that section 148 must be liberally contrued. The Supreme court has excluded from its ambit conditional decrees like the one in the present case. The unreported decision of S.T. Desai and Datar, J. referred to by me above is perfectly in consonance with the view taken by the supreme court in Mahanth Ram Das' case just cited by me and is, therefore, still good law. In that view of the matter this revision Application succeeds and the Rule must be made absolute with costs. The order passed by the learned District Judge is set aside and that of the Civil Judge restored, and the application for extension of time made by the plaintiff (Ex. 4) stands rejected and dismissed.

4. Revision allowed.


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