1. The petitioner seeks to revise the order of the Additional Subordinate Judge, Masulipatam, in C.M.P. No. 299 of 1925.
2. The petitioner was defendant in O.S. No. 308 of 1922 brought by counter-petitioner, the plaintiff, for specific performance of a contract to sell immoveable property. It was decreed against the petitioner that, on counter-petitioner depositing Rs. 300 in three weeks from the date of the decree, the petitioner should execute a sale-deed and put counter-petitioner in possession of the property (Appeal No. 39 of 1923, Additional Subordinate Judge, Masulipatam). The counter-petitioner did not deposit the amount within three weeks and applied after the expiry of that period for extension of time. The learned Additional Subordinate Judge extended the time accordingly and hence this revision petition.
3. There is clear authority that in suits under the Specific Relief Act where the decree has named as here a time within which payment should be made the Court can extend that period. See Abdul Shaker Sahib v. Abdul Rahiman Sahib. ILR (1922) M. 148 : 1922 44 M.L.J. 107
4. It would hardly avail the petitioner in these proceedings to contend that there is equal authority to the contrary. This is not a second appeal and if the Lower Court has applied its mind to the question of law and has followed authority, it cannot be said to have acted illegally or with material irregularity.
5. The only possible contention is that Abdul Shaker Sahib v. Abdul Rahiman Sahib ILR (1922) M. 148 : 1922 44 M.L.J. 107 is so wrong as to be no authority at all. In that case the learned Judges point out that according to English practice a decree for specific relief is not regarded as closed and that the same rule obtains in India is clear from the Act itself. Section 35, Act I of 1877, lays down that the Court may rescind the contract if the purchaser has obtained possession of the property and has made default in payment of the purchase money. Obviously default in payment has not ipso facto rescinded the decree. The time fixed may be taken as a general indication of what is reasonable and is not an absolute condition.
6. This with all respect lays down an eminently sensible rule of procedure (as the Chief Justice observes the contrary view would seem to be absurd) and there is no ruling really to the contrary. In a suit not for specific relief but for recovery of certain property it was held in Moideen Kuppai v. Ponnuswami Filial (1914) 1 L.W. 882 that a Court cannot modify its decree either under Section 148 or under Section 151, Code of Civil Procedure, which seems to be a salutary rule, but here the question is not one of modification but of interpretation. In Abdul Shaker Sahib v. Abdul Rahiman Sahib ILR (1922) M. 148 : 1922 44 M.L.J. 107 it is held that the decree as it stands admits of the extension of time and there is no necessity to alter it (page 155). In Gopala Aiyar v. Sannasi (1915) 3 L.W. 29 a single Judge applied Moideen Kuppai v. Ponnusmmi Pillai (1915) 3 L.W. 29 to a decree under the Specific Relief Act. Ramaswami Kone v. Sundwa Kone I.L.R. (1907) M. 28 : 17 M.L.J. 495 which was also applied, merely lays down that a confirming appellate decree does not enlarge the time. These rulings are fully discussed in Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R. (1922) M. 148 : 1922 44 M.L.J. 107 and Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R. (1922) M. 148 : 44 M.L.J. 107 has been followed in Rama Bhatlu v. Annayya Bhatlu. : AIR1926Mad144
7. The only circumstance which distinguishes the present case is that here the application for extension was made after the expiry of the period, but as the learned Additional Subordinate Judge correctly observes once it is held that time is not essential, it is immaterial whether the application be made before or after the expiry. Whether it has been made within reasonable time is a question of fact to be determined in each case. The learned Judge has found that the delay from October, 1923 to April, 1924, was reasonable.
8. There is, therefore, no ground for interference and the petition is dismissed with costs.
Thiruvenkata Achasriar, J.
8. The applicant before us was the defendant in O.S. No. 308 of 1922 on the file of the District Munsif's Court of Gudivada and the respondent was the plaintiff therein. The suit was for the specific performance of a contract of sale of immoveable properties by the defendant to the plaintiff. The District Munsif dismissed the suit, but on appeal the Additional Subordinate Judge, Masulipatam, passed as follows:
That on the appellant (plaintiff) depositing Rs. 300 in three weeks from this date in the Lower Court, the respondent do execute a sale-deed to the appellant in respect of the scheduled site and do put him in possession of the same.
9. This decree was passed on 30th October, 1923.
10. The plaintiff failed to deposit the amount within the time allowed by the decree. He deposited the amount only on 7th April, 1924, and filed an application for execution of the decree but it was dismissed on the ground that the payment of the money was not made within the time allowed by the decree. The plaintiff thereupon applied to the Appellate Court which passed the decree to extend the time for payment of the purchase money and that Court has by its order, dated 14th July, 1925, extended the time as prayed.
11. The defendant has preferred this application for the revision of that order. The grounds on which the application is pressed before us are:
(1) that the Lower Court had no power to enlarge the time for the payment of the purchase money which was allowed by the decree;
(2) that even if it had such a power it could be exercised only if the application for enlargement of time is made before the expiry of the period allowed by the decree;
(3) that in this case Vhere were no sufficient grounds for excusing the delay and extending the time for payment of the purchase money.
12. As regards the first point the learned Subordinate Judge has on the authority of Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R. (1922) M. 148 : 1922 44 M.L.J. 107 held that he had the power to extend the time allowed by the decree for payment of the purchase money. He has also held that such an order can be made even when the application for enlargement of time is made after the expiry of the time allowed by the decree. The case in Abdul Shaker Sahib v. Abdul Rahiman Saihib I.L.R. (1922) M. 148 : 1922 44 M.L.J. 107 has been followed by Phillips, J., sitting as a single Judge in Rama Bhatlu v. Annayya Bhatlu : AIR1926Mad144 and it clearly supports the order made by the Subordinate Judge.
13. It is contended before us by the learned Vakil for the applicant that the observations made by the learned Judges in Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R. (1922) M. 148 : 1922 44 M.L.J. 107 dissenting from the view taken in Moideen Kuppai v. Ponnuswami Pillai (1914) I.L.W. 882 and Gopala Aiyar v. Sannasi (1915) 3 L.W. 29, which is in favour of the petitioner's contention, are obiter as they were made in the appeal itself which was preferred from the decree granting specific performance. The effect of the appeal which was preferred by the defendant in that case against the decree for specific performance passed against him was, it is contended, to re-open the whole case as between the parties and it was competent to the Appellate Court to vary the decree appealed from as regards the time to be allowed to the plaintiff for payment of the purchase money to the defendant and that was the effect of the appellate decree in that case.
14. The cases reported in Moidecn Kuppai v. Ponnuswmi Pillai (1914) I.L.W. 882 and Gopala Aiyar v. Sannasi (1915) 3 L.W. 29 are, on the other hand, it is contended, direct authorities for the contrary view, namely, that the provision in the decree as to payment of the money within the time allowed therein is a condition imposed by the decree itself for securing the relief granted, namely the execution of conveyance for the property in plaintiff's favour and the delivery of possession of the property to him and an order extending' the time for payment of the purchase money would be really a modification of the decree which can be made only in an appeal preferred against the decree or in an application for review of the decree. There is no doubt as to this contention, being supported by the case in Gopala Aiyar v. Sannasi (1915) 3 L.W. 29 which is a decision of K. Srinivasa Aiyangar, J., sitting as a single Judge. In the case reported in Moidee Kuppai v. Ponnuswami Pillai (1914) I.L.W. 882 the decree under consideration does not appear to have been a decree for specific performance, and, therefore, that case does not affect the question nor the case in Ramaswami Kone v. Sundara Kone I.L.R. (1907) M. 28 : 1907 17 M.L.J. 495, in which this question was not raised. We have, therefore, in support of the contention urged by the petitioner's Vakil only the decision of a single judge in Gopala Aiyar v. Sannasi (1915) 3 L.W. 29 and in that case the question was not considered in the light of the provisions enacted in Section 35 of the Specific Relief Act which has a material bearing on the question. It may be that the present question did not exactly arise for decision in Abdul Shaker Sahib v. Abdul Rahiman Sahib I.L.R. (1922) M. 148 : 1922 44 M.L.J. 107, but the question was fully considered and dealt with by both the learned Judges in that case and their view has been followed by Phillips, J., in Rama Bhatlu v. Annayya Bhatlu : AIR1926Mad144 , in which the question did arise for decision. The weight of authority, therefore, is decidedly in favour of the view that' even in the case of a decree framed like the decree in this case, which I may observe is the form which has been in vogue in such cases the Court which passed the decree has the power to enlarge the time allowed for the payment of the purchase money. There can be no doubt as to the desirability of the Court having such a power. If it has not, its power to render justice in such cases will be seriously crippled.
15. Turning to Section 35 of the Specific Relief Act it will be seen that it deals with three cases enumerated as (a) to (c) of which case (c) alone is relevant to the present question. The section so far as that case is concerned runs as follows:
Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following' cases, namely:*** *** ***(c) where a. decree for specific performance of a contract of sale, * * * a lease has been made, and the purchaser...makes default in payment of the purchase money or other sums which the Court has ordered him to pay.
When the purchaser ... is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor . . . the rents and profits, if any, received by him as such possessor.
In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require.
16. It will be seen that the decree for specific performance of a contract of sale has not the effect of extinguishing the contract of sale by merging it in the decree. On the other hand notwithstanding the decree, the contract of sale is still treated as a subsisting contract and when the purchaser makes default by not paying the purchase money or other sums within the time allowed therefor by the decree it is open to the vendor to have the contract rescinded and he may seek that relief either by .1 suit of his own or by an application made in the suit in which the decree for specific performance of the contract for the sale of land has already been made and not complied with.
17. It was argued by the petitioner's Vakil that the words 'in the same case' in the last sentence of the section refer only to the case put in the preceding sentence, i.e., the case where the purchaser who has obtained the decree for specific performance is also in possession of the subject-matter of the contract. Apart from authority, I think it is fairly clear that the words 'in the same case' in the last clause of the section refer to case (c) and it has also been so held in Kurpal Hemraj v. Sham-rao Raghunath I.L.R. (1922) B. 589 There is no reason for confining the summary remedy provided in the last clause to those cases where the purchaser who has obtained a decree for specific performance is also in possession of the property to which it relates. In the present case therefore, it was open to the respondent to apply for the rescission of the contract on account of the default made by the applicant in payment of the purchase money. Upon such an application the Court may order either the immediate rescission of the contract if it considers that the purchaser has already had sufficient time and has made wilful default or it may grant further time peremptorily for payment of the purchase money and in case of default order rescission of the contract. See Fry on Specific Performance, 6th Ed., Section 1173. On ordering a rescission of the contract, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require. Sec-section 38 of the Specific Relief Act. It follows from this that the right to enforce the decree is not extinguished unless and until a final order is made rescinding the contract. And as the Court has got the power to condone the default when the vendor applies for a rescission of the contract it would be anomalous to hold that it has not mat power when no such application has yet been made. . .
18. It is argued that as there is no statutory provision for enlargement of time for payment of the purchase money as there is in the case of decrees for payment of mortgage money, such a power cannot be implied. This argument will have some force if there was any statutory provision as to what a decree for specific performance of the sale of land should contain and there was in it no provision for enlargement of time. But as the matter has not been dealt with at all, the argument has no force, specific performance being an equitable remedy, it should be presumed that the Court here were left to be guided by long-established practice of the Courts of Equity in England which have been administering that relief. I am, therefore, of opinion that the contention that the Court has no power to enlarge the time for the payment of the purchase money was rightly overruled.
19. As regards the second point, I am of opinion that the power to enlarge the time originally granted may be exercised from time to time on sufficient cause being shown and the Court may do so even if the application for enlargement of time is made after the expiry of the period already granted.
20. As regards the question whether there was no sufficient cause to excuse the delay and to grant further time in the present case, that is a question relating to the merits of the case and even if it has been wrongly decided, we cannot interfere with the learned Judge's decision on that point in revision.
21. The petition is dismissed with costs.