Skip to content


Kuppurajammal Vs. Meenakshi Amnmal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2250 of 1983
Judge
Reported inAIR1984Mad257; (1984)1MLJ404
ActsCode of Civil Procedure (CPC), 1908 - Sections 148 - Order 29, Rule 11 (2)
AppellantKuppurajammal
RespondentMeenakshi Amnmal and ors.
Appellant AdvocateK. Sengottian, Adv.
Respondent AdvocateM. Srinivasan, Adv.
Cases ReferredP. K. Slukumaran v. Sulaiman
Excerpt:
.....- application deserves to be dismissed. - - 20,000, under clauses 2, 3 and 5 and 6 of the final decree, issued a notice on 2-2-1981 drawing attention to the terms of the compromise decree and stating that the respondents bad been evading to make payment on some pretext or other and that if any payment is made thereafter, that will not be accepted and that the first defendant will continue to enjoy his property 48 before. 341 of 1964 to which the petitioner was not a party at all and, therefore, the terms would not be binding upon her, that the failure on the part of the respondents to pay the amount within six months would disentitle them from claiming any right under the final decree, that the question of excusing the delay in depositing the amount into court did not arise at..........in lieu of her 1/10 share in item 1. 5. that in respect of the sale proceeds of rs. 12,000 of suit item 2 (which is not included in the final decree application) the petitioners defendants 2 to 9 do pay the respondent first defendant rs. 4,200 fox his 11150 share and rs. 384 to the plaintiff for her 1/50th share. 6. that the petitioners- defendants 2 to 9 do pay the amounts mentioned in clauses 2 to 5 above mentioned to the respondent first defendant and the plaintiff within six months from date of final decree'. thus, under clause 6 of the final decree above referred to, the respondents should have paid the sum of rs. 8,384 to the petitioners within six months from 9-7-1980, that is, on or before 9-1-1981. there is no dispute that the respondents did not make the payment of rs......
Judgment:
ORDER

1. The plaintiff in 0. S. No. 341 of 1964, Sub Court, Coimbatore is the petitioner in this civil revision petition, which is directed against the order of the, Court below passed in E. A. No. 1703 of 1981 in 1. A. 685 of 1980 in 1. A. 136 of 1978 in 0. S. 341 of 1964, allowing the application filed by the respondent herein under Ss. 148 and 151, C. P. Code, praying that the delay in depositing the sum of Rs. 8,384 for payment to the petitioner be excused and time for such payment be enlarged. On 28-81969, the petitioner obtained a preliminary decree for partition and separate possession of her one-tenth share in the suit properties. The respondents herein filed 1. A. 685 of 1980 in 0. S. 341 of 1964 praying for the appointment of a Commissioner fog the division of Item I of the suit properties. into ten equal shares by metes and bounds and for suggesting the manner of allotment and to pass a final decree thereafter. While that application was pending, a joint petition was filed by the respondents herein and the first defendant in 0. S. 341 of 1964 praying that by consent of parties, a final decree may be passed. Pursuant to this, on 9-7-1980, a compromise final decree was passed and Clauses I to 6 thereunder were as follows:

'1. That the value, of the suit property Item I be and hereby is fixed at Rs. 80,000 and that the said item in its entirety be allotted to the petitioners-defendants 2 to 9.

2. That the petitioners-defendants 2 to 9 do pay compensation amount of Rs. 8,000 to the respondent first defendant in lieu of his 1/10 share in Item 1.

3. That the petitioners defendants 7 to 9 do pay Rs. 7,800 to the respondent first defendant towards the costs of improvements effected by him to Item 1.

4. That the petitioners-defendants 2 to 9 do pay Rs. 8,000 to the plaintiff in lieu Of her 1/10 share in Item 1.

5. That in respect of the sale proceeds of Rs. 12,000 of suit Item 2 (which is not included in the final decree application) the petitioners defendants 2 to 9 do pay the respondent first defendant Rs. 4,200 fox his 11150 share and Rs. 384 to the plaintiff for her 1/50th share.

6. That the petitioners- defendants 2 to 9 do pay the amounts mentioned in Clauses 2 to 5 above mentioned to the respondent first defendant and the plaintiff within six months from date of final decree'. Thus, under Clause 6 of the final decree above referred to, the respondents should have paid the sum of Rs. 8,384 to the petitioners within six months from 9-7-1980, that is, on or before 9-1-1981. There is no dispute that the respondents did not make the payment of Rs. 8,384 to the petitioners as provided under the Clause 6 of the final decree passed by consent. Similarly, the respondents also did -not pay the amounts pay able to the first defendant as per Clauses 2,3 and 5 within the time stipulated under Clause 6 of the final decree earlier referred to. Thereupon, the first defendant in O. S. 341 of 1964, who was entitled to be paid Rs. 20,000, under Clauses 2, 3 and 5 and 6 of the final decree, issued a notice on 2-2-1981 drawing attention to the terms of the compromise decree and stating that the respondents bad been evading to make payment on some pretext or other and that if any payment is made thereafter, that will not be accepted and that the first defendant will continue to enjoy his property 48 before. This notice evoked a reply front the respondents on 9-3-1981, to the effect that while it is true that the amounts should be paid within six months from the date of the final decree, yet, they had not been in a position to raise funds and that every effort was being made to raise funds at an early date with a view to make the payment and therefore, the first defendant in O. S. 341 of 1964 will be advised to wait for some more time and be informed that the payment will be made as early as possible. Even thereafter, the amounts Payable by the respondents under Clause 6 of the final decree had not been paid either to the petitioner of to the first defendant in 0. S. 341 of 1964. On 11-8-1981, the respondents filed E. A. 1703 of 1981 purporting to be under Sections 148 and 151, C. P. C., praying for the excusing of the delay in depositing the sum of Rs. 8,384 due to the petitioner under Cl. 6 of the final decree dated 9-7-1980, and also for enlargement of time for payment there of. In the affidavit filed in support thereof by the third respondent in the civil revision petition it was stated that as per Clauses 4 and 5 of the final decree the respondents Were directed to pay a total sum of Rs. 8,384 to the petitioner herein within six months from the date of the final decree, as per Clause 6 thereof, and that they were unable to pay that amount within that time, it was further stated that in view of several formalities required to be observed before a loan could be raised on the security of the property, a long time had been consumed in that process and that the respondents were not wantonly delaying the payment and that only a few days prior to the filing of the application, they were able to raise the amount from some other source and were depositing the amount of Rs. 8,384 into Court and under these circumstances, the delay in depositing the amount should be excused by enlarging the time for payment already fixed under Cl. 6 of the final decree. The petitioner resisted the application by contending that the final decree was passed on 9-7-1980 in terms of the joint petition filed by defendants 2 to 9 and the first defendant in 0. S. No. 341 of 1964 to which the petitioner was not a party at all and, therefore, the terms would not be binding upon her, that the failure on the part of the respondents to pay the amount within six months would disentitle them from claiming any right under the final decree, that the question of excusing the delay in depositing the amount into Court did not arise at all as the decree did not contemplate any deposit as such into Court, that the Court cannot enlarge the time for payment as it has no jurisdiction to entertain the application and that those objections were raised without prejudice to the rights of the petitioner to set aside the ex parte final decree passed against her.

2. By an order dated 4-1-1983, the 11 Additional Subordinate Judge, Coimbatore, dealt with not only the application filed by the respondents herein against the petitioner in E. A. No. 1703 of 1981, but also a similar application in E. A. No. 1775 of 1981 filed by the respondents herein against the first defendant in 0. S. 341 of 1964. The learned Subordinate Judge, found after referring to the exchange of notices dated 2-2-1981 and 9-3-1981, that the reasons mentioned in the reply notice or in the affidavits filed in support of the applications for the non-payment of the amounts in time were not very material, but that the substance of the matter was that the amounts could not be paid in time owing to the reasons beyond the control of the respondents. Dealing with the question of the jurisdiction of the Court to enlarge the time, the learned Subordinate Judge proceeded to consider the terms of the final decree and found that Clause I of the final decree vested the property in the respondents and in the absence of any clause providing for divestment of title to Item 1, no inconvenience could be caused to the respondents on account of the delayed payment especially in the absence of anything to indicate that the time fixed under Clause 6 of the final decree was an essential part of the compromise. The filing of the applications for enlarging the time after the expiry of the time fixed under Cl. 6 of the final decree was also taken note of by the Court below and it was held that an extension by exercising the inherent powers of Court could delay in depositing the amount could be condoned. In that view, the applications were allowed. Challenging the correctness of the order in E. A. 1703 of 1981, the petitioner has preferred this civil revision petition.

3. The learned counsel for the petitioner submitted that even assuming that the compromise final decree in O. S. 341 of 1964 dated 9-7-1980, is binding on the petitioner, the time stipulated under Clause 6 of the final decree was of the essence of the agreement between the parties and in the absence of consent on the part of the petitioner for any further enlargement Of time, the Court below had no jurisdiction either to excuse the delay or even to extend the time as has been done. Strong reliance in this connection was placed by the learned counsel for the petitioner upon the decisions in Subramania v. Shanmugham, : AIR1968Mad48 , Hukumchand v. Bansilal, : [1967]3SCR695 and P. K. Sukumaran v. Sulaiman, : AIR1971Mad454 . The learned counsel for the petitioner further pointed out that the delay in the payment of the amounts under Clause 6 of the final decree cannot be condoned and an enlargement granted for the asking by the respondents as the affidavit by the respondents before the below for that purpose did not disclose or make out good and acceptable reasons for the delay and also for the enlargement of time. On the other hand. the learned counsel for the respondents would submit that under Clause I of the final decree dated 9-7-1980 in 0. S. 341 of 1964, Item I of the suit properties stood allotted in its entirety to the respondents herein- and under Clauses 4 and 5 thereof, the petitioner had been granted a decree for a sum of Rs. 8,384, and Clause 6 granting six months' time to the respondents to pay that amount really be in the, nature of a bar to the realisation by the petitioner of those amounts or postponement of the payment of the amounts payable under Clauses 4 and 5 of the final decree. It was, therefore, contended that, the direction regarding the payment of the amounts by the respondents to the petitioner within six months is not in any manner linked up with title to Item I of the suit properties and therefore, the Court was quite justified in enlarging the period of stay, as it were, under Clause 6 till 22-81981, when the deposit was made. In reply to this, the learned counsel for the petitioners would contend that all the clauses of the final decree have to be read together and if so read, the allotment of Item I of the suit properties exclusively to the respondents cannot be divorced from the payment of the amounts due to the petitioner under Clause 4 in lieu of her one-tenth share and the very circumstance that the respondents have applied, for In extension of time suggested that the payment is linked up with the respondents securing rights to that share of the, petitioner.

4. Thus, the principal question that arises for consideration is, whether the Court below bad jurisdiction, on. the facts and in the circumstances of the case, to excuse the delay and enlarge the time as prayed for by the respondents. That question is dealt with on the footing that the petitioner is also a consenting party to the compromise, though the petitioner in her counter bad also taken up the stand that she was not a party to the compromise and would not be bound by the final decree passed on the, basis of such compromise. There is no dispute that the petitioner was entitled to a one-tenth share in Item. I and also a fractional share in the proceeds of Item 2 which bad already been disposed of. Under Cl. I of the final decree, no doubt, the value , of Item 1 is fixed at Rs.. 80,000, and it is allotted exclusively to the respondents herein. But Clauses 2 and 1 4 of the final decree had-recognised the right of the first defendant in O. S. 341 of 1964 and the petitioner herein to a one-tenth share in Item 1 and in lieu of that share, the respondents bad, agreed to pay certain amounts to the petitioner is well as the first defendant. Implicit in the final decree' is therefore, the recognition A the tight of the petitioner, to a one-tenth share in' Item I as well as that of the first defendant to a similar one-tenth share in Item I and it is the payment to be made by the respondents in lieu of that share that would 'enable the respondents to claim the entirety of Item I pursuant to allotment of that item under Clause I of the final decree. It is not possible to read Clause' I of the final decree in isolation and to infer there from the absolute allotment of Item I of, the suit properties in favour of The respondents herein without it being in' any manner linked up with the payment to be made by the respondents towards the one-tenth share .each to the Petitioner and the first defendant in the suit. True that there is no specific provision in the final decree as to what should happen in the event of the respondents not paying the amounts as stipulated under Clause 6 of the final decree, but the absence of a clause to that effect cannot take away the rights recognised even under Clause 4 in favour of the petitioner and Clauses 2 and 3 in favour of the first defendant with reference to their one-tenth share in Item I of the suit properties and the improvements therein. A conjoint reading of all the clauses of the final decree makes it clear that the real bargain between the parties was that the amounts payable by the respondents in lieu of the one-tenth share of the petitioner in Item, I of the suit properties should be paid within six months and thereupon the respondents get their right to the entirety of Item I inclusive of, the one-tenth share of the petitioner. Viewed in this light, Clause 6 seems to be really in the nature of a stipulation regarding the time within which the payment should be made in order to enable the respondents to claim title to the entirety of Item 1 of the suit properties. In other words, time was stipulated to be of the essence of the contract and if the payment within the time as provided thereunder had not been made by the respondents, the parties will be thrown back to the position which they occupied previously. That would mean that the -concession had not been availed of by the payment not having been made by the respondents on of before 9-1-1981, and they had not, become entitled to the one-tenth share, of the petitioner in Item I of the suit properties and that the petitioner continued to remain, the owner thereof entitled to enjoy the, same. This, ought not to be equated to a case of forfeiture as such, for, as pointed out earlier, there is no specific provision in that, regard. Therefore, no question of granting relief against forfeiture by condoning the delay and enlarging the time would arise at all in this case. Considering the real bargain between the, parties as reflected in the terms of the com promise final decree, this appears to be a case where time was considered to be of the essence of the contract and it, that. be so, the decision in Subramania v. Sbanmughan, : AIR1968Mad48 would govern, sush a case and the Court has no jurisdiction to extend the time. Earlier, it has been noticed that the final decree bad been passed; by consent of all parties concerned. In such a situation, the time for payment under Clause 6 of the final decree bad also been granted to the respondents by consent of parties and the, Court had, therefore, no power to extend it without the consent of the parties. The Supreme Court in Hukumchand v. Bansilal, : [1967]3SCR695 pointed out that where an application of the judgment debtor to set aside a sale held under a mortgage decree filed under Order 21, Rule 90, C. P. C., was dismissed allowing the judgment debtor to pay the decretal amount and the auction purchaser's commission within a time agreed to by both parties and the judgment debtor did not deposit the amount with in the time but prayed for an extension of time. Which was opposed by the decree-holder and the auction purchaser, the Supreme Court up held the dismissal of the application filed by the judgment debtor and pointed out that as the time had been granted by consent of parties, the Court bad, no Power to extend without consent of parties and Section 148, C. P. Code, would not apply in those circumstances, and, therefore, the executing Court was right in holding that it could not, Contend the time. Similar is the situation in this case and applying the decision of the Supreme Court referred to above, it has to be held that the Court below bad no jurisdiction to entertain the application or to enlarge the time in the, face of the opposition raised, by the petitioner herein. Again in P. K. Slukumaran v. Sulaiman, : AIR1971Mad454 , it, has been' laid down that when once a judgment or decree is signed, it shall not afterwards be altered or added to save as provided by Section 152, C. P. C. and Sec tion 148, C. P. C. cannot be allowed to take away the effect of that rule. Pointing out the distinction between the, cases where a decree fixing the time was not. intended to be final and the Court retaining control over the same and a, case where the proceedings .have come to a close, it was held that if the nature of the order is A final one the Court which. passed that order will become functus officio and has, therefore, no jurisdiction to enlarge the time. In this case. on the passing of the final decree by the consent of parties, the Court below ceased to have any seisin over the -proceedings and, therefore, if bad no jurisdiction to condone the delay or enlarge the time as prayed for by the respondents.

5. The matter may also be looked at from a different angle. Ever, accepting the stand taken by the learned counsel for the respondents that the petitioner, under Cls. 4 and 5 of the final decree had a decree in her favour, the payment of which was postponed by a period of six months under Clause 6 of the final decree. the order excusing the delay and enlarging the time in the face of the opposition raised by the petitioner cannot be sustained. Though the final decree in this case was passed on 9-7-1980, the application fed by the respondents in E. A. 1703 of 1981 was for further postponement of the payment of the amount decreed in favour of the petitioner till The date of deposit of that amount by the respondents, namely, 22-8-1981. In such a situation, 'though the respondents have quoted Section 148, C. P. C, the appropriate provision that would apply is 0. 20, R. 11 (2), C. P. C., and if the Court should pass an order for postponement of the payment of the amounts due under the decree, then such an order can be passed on the application of, the judgment debtor and with the consent of the decree-bolder. In this case, as noticed before, the petitioner has been opposing the postponement of the payment of the amount of Rs. 8,384 by the respondents to the petition and, therefore, it cannot be said by any Welch of imagination that the petitioner, who was in the position of a decree-holder with reference to this amount was a consenting party and on this ground also, it has to be held that the, Court below did not have the jurisdiction either to excuse the delay or even enlarge be time postponing the payment of the amount decreed in favour of the petitioner.

6. A perusal of, the affidavit filed by the respondents -in support of the application filed by them before the Court below also does not indicate that there were any valid or acceptable reasons for the delay in the payment and for seeking an enlargement of time fixed under Clause .6 of: the final decree. The first defendant in the suit had already issued a notice under Ex. B- I to the respondents on 2-2-1981, drawing the attention of the respondents to the decree and stating that the payment had not been made in accordance with the decree and pointed out that no rights to the property would flow thereunder in favour of the respondents. All that had been stated by the respondents in reply thereto under Ex. B-2 was that they were attempting to raise the moneys and that the first defendant will do well to wait and get payment. The stand thus taken by the respondents does not disclose that there had been any serious or, earnest attempt on their part to comply with Clause 6 of the final decree excepting to vaguely suggest that attempts were being made to get Moneys and that the first defendant should wait for the payment. The conduct of the respondents made out by their own reply under Ex. B-2, also indicates that they were never anxious or desirous of performing the obligations cast on them under Clause 6 of the final decree for the payment of the amounts due to the petitioner as well as the first defendant in the suit. The affidavit filed by the respondents before the Court below does not improve matters at all. Indeed, there is nothing mentioned as to the steps taken and the attempts made by the respondents to make the payments contemplated under Clause 6 of the final decree within the time stipulated therein and how they were prevented from doing so. In the absence, therefore, of any attempt having been, made by the respondents to discharge their obligation under, Clause 6 of the final decree within the time stipulated thereunder, the respondents do not deserve to be granted any further indulgence. In other words, absolutely no reasons were stated by the respondents as to why and how the delay in making the payment was occasioned and whether these circumstances were really beyond their control and whether they were entitled to any further indulgence from the Court in the matter of extension of time. Even on merits, therefore, the respondents have not made out a case for the extension of time. No other point was argued.

7. The result is, the order of the Court below in E. A. No. 1703 of 1921 is set aside and that application will stand dismissed. The civil revision petition is allowed with costs.

8. In view of the order passed in the civil revision petition, it would be open to the respondents to withdraw the amount of Rs. 8,384 stated to have been deposited by them on 22-8-1981. Equally, without prejudice to her contention that to the compromise final decree, the petitioner was not a consenting party, it will be open to the petitioner to work out her rights with reference to her one-tenth share in Item I of the suit properties by reopening the final decree proceedings.

9. Revision allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //