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P.K. Sukumaran Vs. Sulaiman Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 2436 of 1970
Judge
Reported inAIR1971Mad454; (1971)1MLJ511
ActsCode of Civil Procedure (CPC), 1908 - Sections 148 and 151
AppellantP.K. Sukumaran
RespondentSulaiman Khan
Cases ReferredKanhu Charan v. Jagabandhu
Excerpt:
civil - final order - sections 148 and 151 and order 20 rule 3 of code of civil procedure, 1908 - order 20 rule 3 stipulates that once judgment or decree signed it shall not afterward be altered or added to except as provided by section 152 or on review - where decree fixing time was not intended to be final and court still retained control the time granted under section 148 may be extended - whether proceedings has come to close or is still alive would depend upon nature of proceedings and order passed thereon - in case order is final order court is functus officio otherwise court can enlarge time. - - it is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree......chetti, 79 mad lw 61 in support of his submission that the court has got the undoubted power to extend time for payment of the decree amount notwithstanding the default clause. but, on a perusal of the said decision it is seen that there was no default clause in the decree such as the one in this case. in that case the direction was:'the plaintiffs will pay a sum of rs. 5000 to the defendant within two months from this date. on payment of the amount, there will be a decree that the plaintiffs are entitled to the entire suit house. the defendant will not be liable to pay any mesne profits from this date.'when the plaintiffs had sought an extension of time beyond two months for payment of the amount the court extended the time notwithstanding the fact that the time notwithstanding the.....
Judgment:
ORDER

1. The petitioner herein filed a suit, O. S. No. 810 of 1968 for declaration of his title to certain trees and for an injunction restraining the respondent herein from cutting the said trees. After trial, the trail court decided the suit in favour of the petitioner and the operative portion of its judgment dated 22-10-1970 was as follows:

'In the result, the plaintiff is entitled to declaration and injunction as prayed for provided he pays the contract amount on or before 23-11-1970. Failing which the suit will stand dismissed.'

The petitioner however, did not pay the contract amount as directed on or before 23-11-1970. He, however, chose to file an application on 25-11-1970 under Sections 148 and 151 C. P. Code to extend the time for depositing the contract amount as per the decree dated 22-10-1970. That application has been dismissed by the lower court on the ground that the order has worked itself out as a result of which the suit stands dismissed, and that it had no power to extend the time at that stage after the suit stood dismissed. It is the said order of the lower court that is attacked in this revision.

2. It is argued on behalf of the petitioner that the court has undoubted jurisdiction and power to condone the delay in payment of the amount mentioned in the decree and that the lower court was in error in refusing to extend the time. The learned counsel referred to the decision of Kailasam J. in P. Jayaram v. P. Venkatesam Chetti, 79 Mad LW 61 in support of his submission that the court has got the undoubted power to extend time for payment of the decree amount notwithstanding the default clause. But, on a perusal of the said decision it is seen that there was no default clause in the decree such as the one in this case. In that case the direction was:

'The plaintiffs will pay a sum of Rs. 5000 to the defendant within two months from this date. On payment of the amount, there will be a decree that the plaintiffs are entitled to the entire suit house. The defendant will not be liable to pay any mesne profits from this date.'

When the plaintiffs had sought an extension of time beyond two months for payment of the amount the court extended the time notwithstanding the fact that the time notwithstanding the fact that the time already granted had expired. Hence that decision does not touch the question arising in this case.

3. The learned counsel then refers to the decision in Abdul Shaker v. Abdul Rahiman AIR 1923 Mad 284 in which a Division Bench of this court held that where a plaintiff was given a decree for specific performance of a contract to sell on condition of his paying a certain amount to the defendant within a specified time, the court was empowered to extend the time in appropriate cases as the decree in such cases is in the nature of a preliminary decree, and the court has still control over the action and has full power to make any just and necessary orders therein. including orders of extension of time. In that case the trial court had passed a decree in favour of the plaintiffs for specific performance of a contract for sale of certain lands and superstructures thereon to them by the defendant and the operative portion of the judgment was as follows:

'I must therefore find for the plaintiffs and give them decree for specific performance on payment of Rs. 4,000. Time for payment two months.'

In pursuance of this judgment a decree was passed fixing time for payment of the amount till 19th December 1921, and directing that upon such payment the defendant had to put the plaintiffs in possession of the properties together with all documents and title deeds. The said decree was construed by the court as being in the nature of preliminary decree, the original court keeping control over the action and having full power to make any just and necessary orders, and it was held that so long as no final orders have been passed terminating the proceedings, the court has got the power to extend the time. Wallace J. referred to the scope of Section 35 of the Specific Relief Act and expressed as follows:

'As I read that section, it lays down that when a decree for specific performance of a contract of sale had been passed and the purchaser makes default in payment of the sum which the court has ordered him to pay, the vendor may either file a fresh suit for rescission of the contract or may in the specific performance suit itself. apply to the court to rescind the contract. It is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree. it is not determined until the court orders that it is determined.'

I am not in a position to agree with the learned counsel for the petitioner that the above decision supports the plea put forward by him. In this case it cannot be said that the decree is in the nature of a preliminary decree and that the court had retained control over the proceedings any further after the decree dated 22-10-1970. Reference was also made to the decision in Mahanth Ram Das v. Gangadas : [1961]3SCR763 where it has been held that Sec. 148, C. P. Code. in terms, allowed extensions of time. even if the original period fixed has expired, that Section 149 is equally liberal, and that those sections could a fortiori be invoked when the time has not actually expired. The learned counsel, relying on the above decision of the Supreme Court, wants this court to construe Sections 148 and 149 liberally and hold the order of the lower court erroneous as it had rejected the application for extension on the ground that it had no jurisdiction. But it is seen that in that case there was a direction by the court that the proper court-fee should be paid on the memorandum of appeal having regard to the amended reliefs claimed within three months from the date of the ascertainment of the same by the office and the communication thereof to the counsel, and that failing such payment of court-fee, the appeal will stand dismissed. Even before default operated the petitioner filed an application for extension of time. The Supreme Court held in those circumstances that as the petition for extension had been filed within time the court had the power to extend the time under Sections 148, 149 and 151, C. P. Code. On a close reading of the above decision, it is seen that the court was inclined to hold that the appellant should have the extension of time sought for by him especially when he has moved the court for such a relief before the default clause operated. In this case the petitioner did not move the court for extension of time before 23-11-1970, the date fixed for payment under the decree. Further the default clause which came up for consideration before the Supreme Court was the one arising out of the non-payment of court-fee where there has been no effective appeal. In this case the suit has been disposed of on merits after trial and the plaintiff was given time for payment of the amount and in default of such payment, the suit was directed to be dismissed. It is not possible to say that the time fixed under the conditional decrees can be extended by the court after the default clause had operated. The remedy for the petitioner can only be by way of review or appeal.

4. In Bhutnath Das v. Sahadeb Chandra : AIR1962Cal485 , there was a decree for specific performance what direction to deposit a specified sum within certain time as a condition and it provided that in default of such payment the suit wound stand dismissed. The plaintiff did not pay the amount within the time specified in the decree. An extension of time was sought for after the time given for payment had expired, and the Court declined to extend the time on the ground that the trial Court, while making an order with a default clause that in default of deposit being made within the time as directed the suit will stand dismissed, was in substance making an order as contemplated under the concluding portion of Section 35 of the Specific Relief Act that as such it does not retain any jurisdiction in the suit after passing that order and that therefore the question of extending time in exercise of its inherent power under Section 151 C.P.C. cannot arise. The learned Judges in that case referred to the decision in AIR 1923 Mad 284 = ILR 46 Mad 148 and distinguished that case stating that time for payment was not fixed as a condition in the decree The decision in : AIR1962Cal485 has also been later followed by another Division Bench of the same court in Bokaro and Ramgur Ltd. v. State of Bihar : AIR1965Cal308 and it was held therein that where a decree was passed on condition that if a certain sum of money be paid within a specified time, the suit would stand decreed and in default thereof the suit would stand dismissed, after the expiry of the time limited by the decree, the court loses seisin over the matter and therefore cannot extend time. Kanhu Charan v. Jagabandhu : AIR1969Ori7 has also taken the same view. It has been held in that case that O. 20. R. 3 lays down that once a judgment or decree is signed, it shall not afterwards be altered or added to, save as provided by Sec. 152. C.P.C. or on review, that accordingly Section 148, C.P.C. cannot be allowed to take away the effect of this rule, that where a decree fixing the time was not intended to be final and the court still retains control over the same the court may extend the time granted under Section 148 C.P.C. and that there is clear distinction between a case where the proceeding has come to a close and another case where it has not terminated and the court still retains control over it. The court has expressed the view that whether a proceeding has come to a close, or is still alive. would again depend upon the nature of the proceeding and the order passed thereon. If the order is a final order, the court is functus officio, otherwise the court can enlarge time.

5. On a due consideration of the principles set out in the decisions above referred to, I find that in this case the court has passed a final order in the suit and the court does not retain control over the suit any further. In such cases it cannot be said that either Section 148 or Sec. 149, C. P. Code could be invoked. I find the order of the lower court is in order and it does not call for any interference. The civil revision petition is dismissed. No costs.

6. Petition dismissed.


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