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Pandurang and anr. Vs. Saraswatibai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 348 of 1973
Judge
Reported inAIR1976Bom369; 1976MhLJ561
ActsCode of Civil Procedure (CPC), 1908 - Sections 148 - Order 20, Rule 14; Hindu Succession Act, 1956 - Sections 22
AppellantPandurang and anr.
RespondentSaraswatibai and anr.
Appellant AdvocateS.J. Deshpande, Adv.
Respondent AdvocateS.P. Kurdukar, Adv.
Excerpt:
.....to acquire property conferred by section 22 of the hindu succession act - it was ruled that in the suit decreed that was a subject to condition that purchase price should be deposited within the period specified in decree, the court had no power to grant extension of time. - - so far as the first condition is concerned, it is satisfied in the present case, because the period of three months to deposit the amount of rs. it is well settled that section 148 of the code does not apply where time is allowed for doing an act by decree in a suit: the lower appellate court was wrong in extending the time for payment because the failure of the plaintiffs-respondents to deposit the amount in terms of the trial court's decree would result in pre-emptors' suit standing dismissed by reason of their..........filed by the plaintiff, the following decree was passed by the trial court on july 29, 1972. 'the suit is decreed. the plaintiff is the owner of half of survey nos. 97, 94, 76 and 84 in her own rights after the death of ansabai and it is declared that the plaintiff has preferential right to purchase other half of the fields s. nos. 97 and 94 under section 22 of the hindu succession act. the plaintiff should deposit the amount of rs. 11,000/- in the court towards the price of half share in suit fields s. nos. 97 and 94 belonging to the defendant no. 1 within three months. on depositing the amount of rupees 11,000/- by the plaintiff in the court the amount of rs. 7,857/- should be paid to the defendant pandurang and the amount of rs. 3,143/- should be paid to the defendant vaijanath. on.....
Judgment:
ORDER

1. In Special Civil Suit No. 12 of 1971 filed by the Plaintiff, the following decree was passed by the trial Court on July 29, 1972.

'The suit is decreed. The Plaintiff is the owner of half of Survey Nos. 97, 94, 76 and 84 in her own rights after the death of Ansabai and it is declared that the plaintiff has preferential right to purchase other half of the fields S. Nos. 97 and 94 under Section 22 of the Hindu Succession Act.

The Plaintiff should deposit the amount of Rs. 11,000/- in the court towards the price of half share in suit fields S. Nos. 97 and 94 belonging to the defendant No. 1 within three months.

On depositing the amount of Rupees 11,000/- by the plaintiff in the Court the amount of Rs. 7,857/- should be paid to the defendant Pandurang and the amount of Rs. 3,143/- should be paid to the defendant Vaijanath. On depositing the amount as stated above the defendants Nos. 1 to 3 should execute sale deed in respect of the suit fields S. Nos. 97 and 94 in favour of the plaintiff at their own costs. If the amount is not paid within the said period the suit of the plaintiff to the extent of half share in said fields would be deemed to have been dismissed.

Decree be drawn up accordingly.'

Before the period of three months expired on October 30, 1972, plaintiff made an application for extension of time to deposit Rs. 11,000/-. Notwithstanding the opposition of the defendants, the Court by its Order dated November 27, 1972, allowed three months' time to the plaintiff to deposit the said amount. Before this extended period of three months expired, on January 29, 1973, the plaintiff made another application for extension of time. Notwithstanding the opposition of the defendants, the Court by its Order dated February 5, 1973, granted two month's time to the plaintiff to deposit the said amount of Rs. 11,000/-. Even before the extended time expired, on March 29, 1973, the plaintiff made the third application for extension of time stating that with greatest difficulties he has been able to collect the balance amount of Rs. 7,857/-. In spite of the opposition of the defendants, the Court by its Order dated April 23, 1973, granted time to the plaintiff to deposit the balance amount of Rs. 7,857/- upto May 29, 1973. It is this last order passed by the learned Civil Judge, Senior Division, Bhir, that has been challenged by the petitioners in this Revision Application.

2. Mr. Deshpande on behalf of the petitioners (defendant Nos. 2 and 3) contended that once time if fixed by the decree to pay a particular amount, the Court is functus officio and has no jurisdiction thereafter to extend such time. He submitted that notwithstanding such clear position in law and notwithstanding the fact that the decree dated July 29, 1972, provided that the plaintiff must deposit in Court the sum of Rs. 11,000/- within three months thereof and further provided that if the amount is not paid within the said period, the suit of the plaintiff to the extent of half share in the said fields viz., survey Nos. 97 and 94 would be deemed to have been dismissed, applications for extension of time were from time to time made by the plaintiff and the same were granted. Such orders granting extension of time, according to the submission of Mr. Deshpande, are without jurisdiction. He further pointed out that even eight upto the date of the hearing of this Revision Application, the sum of Rs. 7,857/- is not deposited by the plaintiff in Court. Thus in any even the suit shall be deemed to have been dismissed so far as survey Nos. 94 and 97 are concerned.

3. Mr. Kurdukar on the other hand, on behalf of the plaintiff, contended that the Court has jurisdiction to extend time having regard to the provisions of Section 148 of the Code of Civil Procedure. He submitted that the power conferred by that section is discretionary without the Court and once discretion is exercised by a Court, this Court in exercise of its revisional jurisdiction ought not to interfere with such exercise of discretionary powers. He, therefore, submitted that the trial Court was right in granting time to the plaintiff by extending the time from time to time for depositing the amount in the Court pursuant to the decree dated July 29, 1972.

4. So far as the provisions of the decree are concerned, they are quite clear and unambiguous. There was a specific direction requiring the plaintiff to deposit the sum of Rs. 11,000/- in Court within a period of three months. The decree further provided that if the said amount was not deposited within the specific period, the suit of the plaintiff to the extent of half share in fields Survey Nos. 94 and 97 would be deemed to have been dismissed. Thus, the decree not only provides or stipulates the time within which the amount was top be deposited, but it also provides for the consequences that are to follow in the event of the amount not being deposited within the specified or stipulated period. Ordinarily having regard to the provisions of Rule 3 of Order XX, when once the Judgment is signed, it shall not afterwards be altered or added to save as provided by Section 152 or on review. It is not the case of Mr. Kurdukar that the present is a case which is covered by Section 152 of the Code. Under Rule 6 of Order XX, a decree shall agree with the Judgment. Thus, having regard to these provisions, ordinarily it is not permissible to a Court of law to make alterations or additions in the Judgment once pronounced.

5. Reliance is however, placed by Mr. Kurdukar upon the provisions of Section 148 of the Code. That Section lays down that 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, even though the period originally fixed or granted may have, expired. Before the power of the Court to enlarge the period can be exercised, two conditions must be fulfilled:- (a) A period must be fixed or granted by the Court for doing any act; and (b) such act must be prescribed or allowed by the Code. So far as the first condition is concerned, it is satisfied in the present case, because the period of three months to deposit the amount of Rs. 11,000/- is fixed or granted by the Court. But the second condition that has to be fulfilled is whether the deposit of such amount can be said to be prescribed or allowed by the Code. Mr. Kurdukar is unable to point out any provision of the Code which prescribes or allows the specification of the time within which the amount is to be deposited. Thus on a prima facie reading of Section 148 of the Code it will not be attracted. It is well settled that Section 148 of the Code does not apply where time is allowed for doing an act by decree in a suit: (See Mulla's Code of Civil Procedure, Volume I, 13th Edition, page 568 and the cases cited in the foot-note (x) at that page). It is by the decree that the time to deposit the sum of Rs. 11,000/- is allowed or granted. Such granting of time is not pursuant to any provisions of the Code. Therefore, Section 148 will have no application in the present case to alter or enlarge the time which has been initially fixed by the decree.

6. Mr. Deshpande has invited my attention to the provisions of Rule 14 of Order 20 of the Code. We are concerned with sub-rule (1) of Rule 14 of this Code, which read as under:-

'Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs.'

That the provisions of sub-rule (1) of Rule 14 are mandatory appears to be very clear from the decision of the Supreme Court in Sulleh Singh v. Sohan Lal, : [1976]1SCR598 . The Supreme Court has laid down that the directions given by the trial Court are mandatory under provisions contained in Order 20, Rule 14. Mere filing of an appeal does not suspend the decree of the trial Court and unless that decree is altered in any manner by the Court of Appeal, the pre-emptor is bound to comply with that direction. The observations in the case of Naguba Appa v. Namdev, : AIR1954SC50 , that the pre-emptor is bound to comply with the directions of the trial Judge unless the decree is altered in any manner by a Court of Appeal do not mean that where the directions of the trial Court, the Appellate Court can extend the time for payment. Where in the appeal filed by the plaintiffs-respondents against the trial Court's decree, the lower appellate Court did not grant any stay to the plaintiffs-respondents and the plaintiffs-respondents did not deposit the pre-emption price within the stipulated time as directed by the trial Court, it was held that the lower appellate Court should have dismissed the suit. The lower appellate Court was wrong in extending the time for payment because the failure of the plaintiffs-respondents to deposit the amount in terms of the trial Court's decree would result in pre-emptors' suit standing dismissed by reason of their default in not depositing the pre-emption price. The High Court was wrong in not setting aside the order of extension of time passed aside the order of extension of time passed by the lower appellate Court. It was only if the plaintiff-respondents had paid the decretal amount within the time granted by the trial Court or if the plaintiffs-respondents had obtained another order from the lower appellate Court granting any order of stay that the lower appellate Court might have considered the passing of appropriate order in favour of pre-emptors.

7. This decision makes it clear that the provisions of Order 20, Rule 14 are mandatory. In the present case no appeal is preferred against the decree which was passed by the trial Court and there was no question of exercise of powers by the appellate Court. So far as the decree itself was concerned, it provided for the consequences in default of payment within the stipulated period. Thus, if the amount was not deposited by the decree-holder within the time stipulated in the decree, then automatically having regard to the provisions of Order 20, Rule 14 of the Code as well as this decision of the Supreme Court in Sulleh Singh's case, the suit stands dismissed.

8. This Principle which has been enunciated by the Supreme Court in respect of a decree in a pre-emption suit will be equally applicable where a decree is passed to enforce a preferential right to acquire property as contemplated by Section 22 of the Hindu Succession Act, 1956. That Section provides that where, after the commencement of this Act, an interest in any immovable property of an intestate ......... develops upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or basins, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. A suit to enforce such right conferred by Section 22(1) of the Hindu Secession Act is similar to one for exercise of a right by way of pre-emption and the provisions of Order 20, Rule 14 of the Code of Civil Procedure will be attracted. It is because of the said provision, that the decree specifically provides that in default of deposit of Rs. 11,000/- within the stipulated period, the suit of the plaintiff to the extent of half share in filed survey Nos. 94 and 97 shall stand dismissed. Thus, neither under Section 148 of the Code the Court has power to extend the period nor having regard to the provisions of Order 20, Rule 14 of the Code can such direction of extension of time for deposit of the amount be granted. In my opinion, the trial Court from time to time in granting extension for the deposit of the amount of Rs. 11,000/- acted without jurisdiction and such an order is liable to be set aside in exercise of the revisional powers of this Court.

9. In the result, the Revision Application is allowed. The Rule is made absolute. The Order passed by the trial Court dated April 23, 1973, is set aside. Looking to the facts and circumstances of the case, the fair order as to costs will be each party will bear its own costs.

10. Revision allowed.


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