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G. Rangaraju Chettiar Vs. Meenakshi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1101 of 1983
Judge
Reported inAIR1984Mad147; (1984)1MLJ125
ActsCode of Civil Procedure (CPC), 1908 - Sections 148
AppellantG. Rangaraju Chettiar
RespondentMeenakshi Ammal and ors.
Appellant AdvocateR. Krishna Murthy, Adv.
Respondent AdvocateM. Srinivasan, Adv.
Cases ReferredP. K. Sukumaran v. Sulaiman
Excerpt:
- - debya, air1970cal199 ,which took the view that it there is no statutory time limit laid down prescribing a time within which a deposit has to be made, and on failure to deposit, it would result in forfeiture of -rights, then the court has ample powers to grant relief even without consent of parties. the court below was well within its jurisdiction in extending the time by taking into account the' circumstances pleaded by respondents and therefore, this civil revision petition is dismissed......and that in a cast -wherein a decree was passed under a compromise, court had no jurisdiction to extend time by invoking s. 148, civil p. c.2. mr. r. krishnamurthi, learned counsel for the revision petitioner, pleads that the court has no jurisdiction to extend the time in a case wherein a decree had been passed, under compromift, and that a court cannot rewrite a contract, relying upon the following decisions. in dr. ram kumar v. mahadeo lal., air 152 raj 54, it was held that to invoke section 148, civil p. c., court must have a case before it in regard to which it had jurisdiction, and when decree prescribes a period, executing court cannot alter or vary it. in narayanan v. govindan, air 1952 trav. co. 440. it was held by a division bench that executing court has no jurisdiction to.....
Judgment:
ORDER

1. The first defendant-respondent in court below is the revision petitioner herein. The respondents herein filed E, A. 1703 of 1981 and 1778 of 1981 in 0. S 841 of 1964, under Sections 148 and 151, Civil P. C. to condone the delay in depositing the sums as per condition mentioned in the final decree dated 9-7-1980, which is the outcome of a compromise arrived at between the parties. Under Clause (6) of the decree, defendants 2 to 9 were to pay the amounts mentioned in Cls. (2) to (5) to the respondent first defendant and the plaintiff, within six months from the date of the final decree. As per Clause (7), first defendant was to deliver possession of the portion of Item I in his possession, through his tenant, to defendants 2 to 9, by attainment at the time of payment of Rs. 20,000 as stated in paras 2, 3 and 5 therein. The last date for payment was 9-1-1981. On 2-2-1981, the revision petitioner sent a notice drawing the attention of respondents about the non-payment of the amount stipulated under the final decree, and 0 spite of at, a sum of Rs. 20,000 was deposited on 27-7-1981, and the other amount of Rs. 8384 was deposited. on 22-9-1981. It is to excuse the delay in depositing the said sums, on petitions filed, and court below having allowed it in this revision petition, it is contended that executing court cannot go behind the decree, and when tile cast has come to a close, it had no jurisdiction to condone the delay, and that in a cast -wherein a decree was passed under a compromise, court had no jurisdiction to extend time by invoking S. 148, Civil P. C.

2. Mr. R. Krishnamurthi, learned counsel for the revision petitioner, pleads that the court has no jurisdiction to extend the time in a case wherein a decree had been passed, under compromift, and that a court cannot rewrite a contract, relying upon the following decisions. In Dr. Ram Kumar v. Mahadeo Lal., AIR 152 Raj 54, it was held that to invoke Section 148, Civil P. C., court must have a case before it in regard to which it had jurisdiction, and when decree prescribes a period, executing court cannot alter or vary it. In Narayanan v. Govindan, AIR 1952 Trav. Co. 440. it was held by a Division Bench that executing court has no jurisdiction to extend the time as fixed in the decree, because it will be altering or modifying the terms of the decree and the general power conferred by Section 148 is not intended to cover such cases. When time is the essence of the condition imposed by the decree, and the conditional clause in favor of the plaintiff having automatically come into effect at the of 111c stipulated period, and Such a provision having not Venal in nature, defendant cannot be relieved of Vic forfeiture resulting the time limit prescribed under the decree.

3. The Supreme Court in V. Ramaswami Aiyengar v. Kailash Thevar, : [1951]2SCR292 held, that the duty of an executing court is to give effect to the terms of the decree and has no power to go beyond its terms. Even though it has power to interpret the decree, it cannot make a new decree 'for the parties under the guise of interpretation. In Topanmal v. M/s. Kundamal Gangaram, AIR 1980 SC 388, it is stated that a court executing a decree cannot go behind the decree and it must take the. Decree as it stands, for it is bondage and continue between the parties to the suit. He would then refer to Hukumchand v. Bansilal, : [1967]3SCR695 , which proceeded to hold that, where there was a. statutory compulsion, to, confirm the sale an the, demand of the application under Order 21, Rule 90, Civil P. C. any further postponement of the confirmation of sale could only be by consent of'-parties, and that executing court has no jurisdiction to grant time. Relying on these decisions he pleads that the following propositions emerge, they being that the executing court cannot go behind the decree and it cannot rewrite a term agreed to between the parties and when the case has come to a close. the court has no jurisdiction to extend the time, as has been done by the court below, unless parties express their consent. When a notice had bow, sent on 2-2-1981 reminding about the need to comply with the conditions agreed to and there being no prompt compliance it only goes to show that wantonly and knowingly, Clause (0) of the decree had been contravened, and having committed such breach of term, executing court had no jurisdiction to extend the period, as if it was a decree passed by court.

4. Mr. M. Srinivasan, learned counsel for the respondents, refers to M. Ponnaiyyan v. Muthayyan, 1981 TLNJ 332, which is to the effect that court has power to extend the time after the expiry of the period originally fixed by invoking Section 148, Civil P. C. This was a cast wherein the trial court fixed two months time and not by mutual consent of the parties, whereas in the final decree under consideration, period was fixed by consent of parties.

5. He then referred to Jadabendranath v. M. Debya, : AIR1970Cal199 , which took the view that it there is no statutory time limit laid down prescribing a time within which a deposit has to be made, and on failure to deposit, it would result in forfeiture of -rights, then the court has ample powers to grant relief even without consent of parties. The dccision in Hukumchand v. Bansilal, AIR 18 SC 86 was distinguished in this decision. Then he referred to Sint. Pariyakkal v. Smt. Dakshyani, : [1983]2SCR467 wherein, after referring to the earlier decision in N. Hukumchand v. Bansilal, AIR 1%8 SC 86, it has been held that, when parties enter into a compromise and invite the court to make an order in terms of the compromise, then the time for deposit stipulated by the parties becomes the time allowed by the court, which in turn gives th6 court the jurisdiction to extend the time in appropriate cases. It was held that the contract of parties got merged in the order of the court and hence court's freedom to art to further the ends of justice would surely not stand curtailed, even though the court would not rewrite a contract but would relieve against a forfeiture clause 'in rare cases, to prevent manifest injustice. Relying heavily on this decision, he states that~ when respondents herein were unable to raise the loan because of innumerable formalities that had to be compiled with or securing assistance from Insurance company. They had no other option than to deposit the amount beyond time, and seek for condensation. He submits that, when within a close proximity of time, the amount as m queried under the decree having been deposited, it shows that the respondents have made bona fide attempts to secure the amounts, but only because of factors beyond their control, they could not do so, and that they had no intention to avoid compliance with the terms of the decree. They have not even sought for mere installments, but within about six months they have deposited the entire amounts. Hence, as held, by the Supreme Court this is a case where ends of justice require that court should extend the time.

6. Mr. Krishamurthi, learned counsel for the revision petitioner, would point out that Supreme Court had stated that extension of time is not to be granted for the asking and only in appropriate cases court would extend the time, and this is not a case where any such extenuating circumstances exist.

7. On Supreme Court holding that a contract between the parties gets merged in the order of the court by passing a compromise decree, and thereafter it secures the freedom to act to further the ends of justice, the executing court in appropriate cases, could extend the time in rare cases to prevent manifest injustice, and when such powers are invoked, it cannot be resisted by pleading that executing court is rewriting a contract entered into between the parties, or that it is going behind the terms of the decree.

8. Mr. Krishnamurthi, learned counsel for the petitioner, refers to P. K. Sukumaran v. Sulaiman, : AIR1971Mad454 to contend that once the court loses seisin over the matter and in this case, a final decree having been passed, it has no jurisdiction to grant time under Section 148, Civil P. C. This decision, in the light of the Supreme Court decision above referred to cannot any longer be relied upon because once the consent memo is treated in the eye of law as an order of court the power of the court to extend time under Section 148 being available, the court below has the necessary jurisdiction, to extend time.

9. He then contends that the aforesaid decision of the Supreme Court can have no application in a matter arising under execution. Here again, the principle of law having been laid down, it matters little whether the question of grant of time, arises in the suit or in the execution proceedings.

10. Again relentlessly he pleads that the yardsticks taken into account by the Supreme Court for exercise of powers in extraordinary cases, are not available herein. As already stated above, the judgment debtors having shown their bona fide to pay the amounts, and on receipt of notice, having come forward 'to pay the entire amounts, in the light of the view taken by the Supreme Court, this court has no other option than to hold that the present case is also an appropriate case, wherein ends of justice require the grant of time.

11. Accepting the circumstances pleaded by respondent herein, which go to show that this is an appropriate case wherein, in spite of taking genuine steps, to comply with the condition relating to payment, the time limit could not be adhered to, because of factors beyond their control; the court below was well within its jurisdiction in extending the time by taking into account the' circumstances pleaded by respondents and therefore, this civil revision petition is dismissed.

12. No costs.

13. Petition dismissed.


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