1. In a preliminary decree in a suit for partition the decree of the trial Court provided ; 'that the plaintiff be entitled to a half share in the plaint A Schedule, Items 1 to 5 described hereunder on payment into Court within six months from this data Rs. 1102-5-0 with interest thereon at six per cent. per annum from the date of plaint, that is, 15th September 1943 till payment.'
The amount was not paid within the period of six months from the date of the decree of the trial Court. There was an appeal against that decree and that appeal was finally disposed of on 28th June 1946. Within six months of the date of the appellate decree, the plaintiff deposited the amount into Court, and applied in I. A. No. 386 of 1946 for permission to deposit the amount due 1950 M/1 & 2 under the preliminary decree which was confirmed on appeal into Court and the learned Subordinate Judge granted a week's time from the date of the order 8th January 1947. That order, defendant 1, petitioner, seeks to set aside in revision.
2. The main contention of the petitioner was that the Court had no jurisdiction to extend the time fixed in the decree, that is, six months from the date of the preliminary decree of the trial Court. The learned advocate for the petitioner relied on the decisions in Mohideen Kuppai v. Ponnusami Pillai, l M. L. W. 882 : (A. I. R. 1915 Mad. 69) and Gopala Iyer v. Sannasi, 3 M. L W. 29 : (A. I. R. 1917 Mad. 838). Both these decisions were considered in Abdul Shaker Sahib v. Abdul Rahiman Sahib, 46 Mad. 148 : A. I. R. 1923 Mad. 284, by a Division Bench consisting of Schwabe C. J. and Wallace J. All these decisions again were considered in Mohamed Ali Sahib v. Abdul Khadir Sahib, 59 M.L J. 851. It should be unnecessary to go at great length into the same question. The basis of the decision in Abdul Shaker Sahib v. Abdul Bahiman Sahib, 46 Mad. 148 : A. I. R. 1923 Mad. 284, appears to me to be the observation of Schwabe C. J. at p. 155 :
'As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use.'
In Mahomed Ali Sahib v. Abdul Khadir Sahib, 59 M. l. J. 351 Jackson J. said with reference to the observations of Schwabe C. J.:
'This with all respects lays down an eminently sensible rule of procedure . . . . and there is really no ruling really to the contrary.'
3. Thiruvenkatachariar J. referred to the scope of Section 35, Specific Relief Act. Even with reference to that, the conclusion finally reached by the learned Judge was that so long as the Court retained its power under Section 35(c), Specific Relief Act to rescind the contract the Court had power to extend the time originally granted by it, obviously because the suit was still pending before the Court. That brings it exactly within the scope of the principle laid down by Schwabe C. J. Idumbu Parayan v. Pethu Reddi, 43 Mad. 357 : A. I. R. 1920 Mad. 99, is directly in point. There the learned Judges held that where a decree in a suit for partition provided inter alia that the plaintiffs could recover certain properties from the alienees on payment of a sum of money into Court by a certain date without any provision as to the effect of non-payment and the plaintiff paid the money on a subsequent date the Court had jurisdiction to extend time for payment. The learned Judges observed that the decree was in terms and in effect one for redemption and the Court had jurisdiction to extend the time under Order 34, Rule 8, Civil P. C. Should an alternative basis be needed for the jurisdiction of the Court to extend time for payment that should be found in Order 34, Rule 8. But even without that, on the basis of the principles laid down in Abdul Shaker Sahib v. Abdul Rahiman Sahib, 46 Mad. 148 : A. I. R. 1923 Mad. 284, the Court obviously had jurisdiction to extend time.
4. No question really arises whether the learned Subordinate Judge did exercise this discretion aright in granting time prayed for by the plaintiffs. Obviously such a question could not really arise in revision. The petition is dismissed with costs.