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Babulal Vithoba Vs. Jagannath Sakharamji Somkuwar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Civil Revision Application No. 45 of 1966
Judge
Reported in(1970)72BOMLR835; 1970MhLJ481
AppellantBabulal Vithoba
RespondentJagannath Sakharamji Somkuwar
DispositionAppeal allowed
Excerpt:
specific relief act (47 of 1963), section 28 (1)--decree for specific performance mentioning time limit for payment of balance of purchase price--whether court competent to extend such lime. where a decree for specific performance of sale of property mentions a time limit for payment by the purchaser of balance of the purchase price failing which his claim for specific performance was liable to be dismissed, the court has jurisdiction to extend the time for making such payment.;gopala aiyar v. sannasi (1815) 82 i.c. 401, abdul shaker sahib v. abdul rahiman sahib [1928] a.i.r. mad. 284, ramastvami kone v. sundara kone (1907) i.l.r. 81 mad. 28, rajan patro v. akur sahu [1959] a.i.r. orissa 74, tribeni v. ramratan [1950] a.i.r. pat. 460, gokul prasad v. fatttelal [1946] a.i.r. nag. 29 and..........this sum. the learned civil judge below has formulated a point whether in view of the terms of the decree, time could be extended or could not be extended for the sale deed. after relying on the case of gopala aiyar v. sannasi (1815) 82 i.c. 401, the learned civil judge came to the conclusion that in view of the fact that the decree had mentioned a time-limit, the court could not extend time by going against the terms of the order in the decree. it is, therefore, on this point of jurisdiction that the learned civil judge has dismissed the application of the applicant-plaintiff for condonation of the delay in the payment of rs. 500. this order is now challenged here by the applicant-plaintiff. the point therefore that arises here for consideration is to see whether this order of the trial.....
Judgment:

Bhole, J.

1. This is an application in revision by the plaintiff who had sued the opponent-defendant claiming a decree for specific performance of a contract of sale of a land situated at mouza Metpanjara, tahsil Katol, district Nagpur. The opponent had agreed to sell the land to the applicant for Rs. 700 on April 18, 1964 and on that date the applicant had also paid an earnest money its. 200. It was further agreed between the parties that the final sale deed would be executed on April 27, 1964 after receiving the balance. This agreement to sell was also reduced to writing in an Isar Chitthi dated April 18, 1964. Because the opponent did not fulfil his promise, therefore the applicant had to file this suit claiming a decree for specific performance of the contract.

2. A decree was passed in favour of the plaintiff by a judgment dated June 80, 1965. The decree was drawn on July 2, 1965. Under the decree, the applicant-plaintiff had to deposit the sum of Rs. 500 as balance of consideration within three weeks from the date of the decree and thereafter the defendant was ordered to execute a registered sale deed of the suit land in applicant-plaintiff's favour within two weeks at the applicant-plaintiff's expense after deposit of the balance of consideration. It was further mentioned in the decree that if the applicant-plaintiff fails to deposit the balance of consideration as stated in the decree within the stipulated time, then his claim for specific performance shall stand dismissed with costs. Therefore the applicant-plaintiff had to pay the balance of consideration on or before July 23, 1965.

3. The applicant's grievance is that because he was ill, therefore, he was not in a position to pay this sum before July 23, 1965. He thereafter deposited the sum of Rs. 500 on August 4, 1965. At the same time he applied to the Court for condonation of delay in depositing this sum. The learned Civil Judge below has formulated a point whether in view of the terms of the decree, time could be extended or could not be extended for the sale deed. After relying on the case of Gopala Aiyar v. Sannasi (1815) 82 I.C. 401, the learned Civil Judge came to the conclusion that in view of the fact that the decree had mentioned a time-limit, the Court could not extend time by going against the terms of the order in the decree. It is, therefore, on this point of jurisdiction that the learned Civil Judge has dismissed the application of the applicant-plaintiff for condonation of the delay in the payment of Rs. 500. This order is now challenged here by the applicant-plaintiff. The point therefore that arises here for consideration is to see whether this order of the trial Court is legal and proper.

4. It is true that in Gopala Aiyar v. Sannasi the learned single Judge of the Madras High Court who was hearing the case took a view that in view of the order passed in the decree, the trial Court could not have any jurisdiction to extend the time for the payment of money by the decree-holder. But it appears that the same High Court later on differed from this view. In Abdul Shaher Sahib v. Abdul Rakiman Sahib A.I.R. [1928] Mad. 284, a Division Bench of that High Court was considering similar facts. That was also a decree for specific performance. That High Court held that even where it was intended by the decree that the payment of Rs. 4,000 by the date named should be a condition, failing to comply with which, would deprive the successful plaintiff of all his rights under the decree, that decree being in the nature of a preliminary decree, the original Court can keep control over the action and have full power to make any just and necessary orders therein, including in appropriate cases the extension of the time. The Madras High Court in this case also referred to Gopala Aiyar v. Sannasi. The Division Bench did not agree with the decision in Gopala Aiyar's case. Their Lordships in this Madras case have also referred to Ramaswami Kone v. Sundara Kone I.L.R. (1907) Mad. 28 in which a similar view as that taken in Abdul Shaker Sahib v. Abdul Rakiman Sahib was taken. It appears to me, therefore, that the learned Civil Judge was in error in following the proposition laid down in Gopala Aiyar v. Sannasi, especially when the same High Court in various other cases has taken a different and a contrary view.

5. Now, in a suit for specific performance of a contract, a decree has to Joe passed. All that a decree for specific performance can properly contain in the beginning is an adjudication to the effect that the plaintiff is entitled to the enforcement of the contract which the defendant had entered into with him for the sale of a certain property for a certain specified sum. The power of the Court to fix a period for the deposit of the balance of consideration is some times provided and some times not provided for specifically. But the power of the Court to fix a period is not specifically provided for either in the Specific Relief Act or in the Civil Procedure Code. In fact the Code does not provide for any special Form in which a decree has to be drawn. Therefore, the decree which has to be passed is a kind of a preliminary decree. If that is so, then it would be difficult for one to say that even if a decree is granted to the decree-holder to pay the balance of consideration, the decree-holder in a given circumstance could not be allowed to extend the time for the payment of the balance of consideration.

6. In fact, it does appear from the language used in Section 28(2) of the Specific Relief Act that the Court which passes the decree has the power to extend time to deposit the balance of consideration. Section 28 of the Specific Relief Act (Act No. 47 of 1968) is as follows :

28. (1) Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.

It is clear from the language used in Section 28 that if the decree-holder does not within the period specified in a decree pay the deposit, the Court may allow further period for the purpose of depositing the purchase money. Therefore, under Section 28 itself if the purchaser does not deposit the money within the period fixed in the decree, a further period could be granted by the Court which passed the decree. The words, 'which the Court has ordered to pay, the vendor or lessor may apply in the same suit in which the decree is made to have the contract rescinded' clearly show that all these applications for extension of time for payment of the balance of consideration should be made to the Court which passes the decree and the Court which passed the decree can grant further time for payment or, under some circumstances, reject the application. Section 28, therefore, is also plain enough to conclude that the Court which passes the decree has jurisdiction to extend the time though it might have been fixed in the decree itself.

7. This view is held by several High Courts. In Rajan Patro v. Akur Sahu A.I.R. [1959] Orissa 74, the Orissa High Court was considering the extension of time fixed by the decree in a suit for specific performance. It was held by that High Court that the Court possessed power to extend the time for payment by the plaintiff. It was observed by that High Court that when the Court had fixed a time by calling upon the plaintiff to do something and the final order of dismissal was not yet passed the case might be in a moribund condition but was certainly not dead and that the Court was, therefore, empowered to extend the time before the final order of dismissal was passed, for until then the Court had seisin of the case and jurisdiction to pass the order. A similar view was also taken by the Patna High Court in Tribeni v. Ramratan A.I.R. [1950] Pat. 460. That High Court also was considering a decree for specific performance of a contract for sale and an extension of time after expiry of time originally fixed for payment of purchase money. It was considering Section 85 of the old Specific Relief Act and not Section 28(I) of the new Specific Relief Act with which we are concerned. The new Section 28(1) as mentioned above is much more specific in the matter of giving jurisdiction to the trial Court for extending the time-limit for payment. The Patna High Court as also the Orissa High Court was of the view that even under the old Section 85 of the Specific Relief Act, the Court which passed the decree had jurisdiction to extend the time because the decree was in the nature of a preliminary decree and Section 148, Civil Procedure Code also was available to the Court for the alteration or extension of time if thought fit. The Patna High Court referred to Abdul Shaher Sahib v. Abdul Rahiman Sahib as well as to Abdur Rahim v. Tamijaddin : AIR1933Cal580 and Gokul Prasad v. Fattelal A.I.R. [1946] Nag. 29. All these citations were used for the purpose of supporting their view.

8. In Gokul Prasad v. Fattelal, Mr. Justice Niyogi was also of the same view. The Nagpur High Court was considering a decree for specific performance of a contract for sale as also the Court's power to extend time fixed in a decree for payment of the price. After referring to Rama Bhatlu v. Annayya Bhatlu A.I.R. [1926] Mad. 144 the Nagpur High Court took a view that the decree in a suit for specific performance of a contract for sale fixing time for payment of purchase money was in the nature of a preliminary decree and, therefore, the Court has power to extend the time fixed by the decree. Recently my learned brother Mr. Justice Padhye has also taken a similar view in Sonabai Chhotelal Kothari v. Bansilal Dhanraj Kochar (1968) Civil Revision Application No. 105 of 1905, decided by Padhye J., on August 8, 1968 (Unrep.). It appears to me, therefore, that the learned Civil Judge has committed an error in passing an order that the trial Court had no jurisdiction to extend time for payment of the balance of consideration. The trial Court has jurisdiction to pass such an order.

9. I, therefore, allow this application, set aside the order of the trial Court and direct that the record and proceedings be sent back to the trial Court for trying the application on merits and disposing it of according to law.


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