Skip to content


Rayadurai Padayachi Vs. Muthuswami Padayachi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1312 of 1960
Judge
Reported inAIR1962Mad489
ActsCode of Civil Procedure (CPC), 1908 - Sections 47, 100 and 151
AppellantRayadurai Padayachi
RespondentMuthuswami Padayachi and ors.
Cases ReferredSreepathi Balaiah v. Ramayya
Excerpt:
.....the question is one that arises under section 47 of the civil procedure code and relates to the execution of the compromise decree. from the terms of the decree stated above the two conditions, namely, that relating to the deposit of the money as well as the filing of the draft sale deed, should be rgarded only as essential conditions, as a penalty is, imposed for non-compliance with the conditions within the time granted. that decision can-not obviously apply to a case like the present one, where the suit has been finally disposed of......money to third defendant by way of promissory note. 2. that the plaintiff shall file the draft sale deed within 15 days from this date into court, that after the approval of the draft sale deed the-first defendant shall execute the sale deed at the expense of the plaintiff in proper stamp papers, that if the first defendant fails to execute the sale deed after two weeks after the approval of the sale deed by the court, the court shall execute the sale deed. the third defendant shall draw the said sum of rs. 1200/- after the execution of the sale deed and after making endorsement that the mortgage amount has been fully satisfied on the mortgage deed..................... if the plaintiff fails to, deposit the sum of rs. 200/- on or before 11-8-1958, or fails to carry out the above said.....
Judgment:

(1) This revision petition arises out of the judgment of the learned Subordinate Judge of Salem in appeal, under section 47 Civil Procedure Code, setting aside the order of the executing Court extending the time for specific performance. In O. S. No. 278 of 1957, the petitioner and the respondents entered into a compromise which was subsequently-made a decree of court. The decree stated,

'1. That the plaintiff do deposit into court Rs. 200 on or before 11-8-1958, that the third defendant do get Rs. 1,200/- (Rs. thousand deposited already by the plaintiff plus Rs. 200/- to be deposited by the plaintiff on or before 11-8-1958) towards the mortgage debt dated 22-5-1957 by first defendant to the third defendant, that the, third defendant has agreed that the debt so far as-it relates to the suit be and the game is cleared; that the third defendant shall proceed against the other mortgaged properties (except the suit properties) for the balance of the mortgage amount; that the third defendant shall endorse the above said sum on the mortgage deed, and that the first defendant owes money to third defendant by way of promissory note.

2. That the plaintiff shall file the draft sale deed within 15 days from this date into Court, that after the approval of the draft sale deed the-first defendant shall execute the sale deed at the expense of the plaintiff in proper stamp papers, that if the first defendant fails to execute the sale deed after two weeks after the approval of the sale deed by the Court, the Court shall execute the sale deed. The third defendant shall draw the said sum of Rs. 1200/- after the execution of the sale deed and after making endorsement that the mortgage amount has been fully satisfied on the mortgage deed..................... if the plaintiff fails to, deposit the sum of Rs. 200/- on or before 11-8-1958, or fails to carry out the above said conditions, the suit shall stand dismissed.'

The plaintiff complied with the conditions as to, payment of money set out in paragraph (1) above in time. But unfortunately he did not file the draft sale deed into Court within 15 days from the date of the decree. There was a delay of about three days thereafter in filing the draft sale deed. He thereupon applied to the executing Court to extend the time allowed under the decree for filing the draft sale deed. The request was acceded to by the learned District Munsif, Salem. There was an appeal from that order under section 47 Civil Procedure Code to the Subordinate Judge, Salem. The learned Subordinate Judge held that time was the essence of the contract which formed the basis of the compromise and that as one of the conditions of the compromise decree had not been complied with within the time allowed by it, there was no power in the Court to extend the time. In this view the appeal was allowed. The plaintiff has filed this civil revision petition challenging the correctness of the order of the lower appellate court.

(2) This revision petition will have to be thrown out on the preliminary ground that an appeal would lie from the judgment of the lower appellate court under section 47 read with section 100 of the Civil Procedure Code. Mr. N. R. Raghavachari, learned counsel appearing for the petitioner, contended that the case is not one governed by section 47 Civil Procedure Code and therefore the lower Appellate court has no jurisdiction to entertain the appeal itself. Even so, it is well settled that if a court purports to act under a particular provision of law, the right of appeal will be governed by that provision. I am satisfied also that the question is one that arises under section 47 of the Civil Procedure Code and relates to the execution of the compromise decree. It is, however, unnecessary to dispose of this civil revision petition on the preliminary ground, as I am of opinion that the judgment of the lower appellate court is correct even on the basis on which it has been decided. From the terms of the decree stated above the two conditions, namely, that relating to the deposit of the money as well as the filing of the draft sale deed, should be rgarded only as essential conditions, as a penalty is, imposed for non-compliance with the conditions within the time granted. The decree which is a compromise decree should be regarded as a con-tract between the parties. Generally, in the matter of sale of immovable property, time cannot be regarded as the essence of the contract. But it cannot be disputed that it would be open to the parties to make time the essence of the contract. In this case when the parties provided under the compromise that if the conditions were not com-plied with within the period of 15 days from the date of the decree the suit would have to stand dismissed, it must be taken that time was an essential term of the contract. That apart, the compromise decree itself has provided for an automatic dismissal of the suit if the conditions mentioned therein are not performed. It cannot be disputed that the term as to the filing of the draft sale deed was an essential term of the compromise, for the last clause in the decree states 'If the plaintiff fails to deposit the sum of Rs. 200/-........ or fails to carry out the above said conditions'. Independent of the payment of the amount, the only other condition imposed by the decree is the filing of the draft sale deed. Therefore, the term 'condition' obviously applied to the filing of the draft sale deed. Mr. Raghavachari contends that although the decree provides for the automatic dismissal of the suit for non-compliance with the conditions imposed by the decree the Court has an inherent power under section 151 of the Civil Procedure Code to extend the time. In support of this contention reliance is placed on the decision of the Andhra Pradesh High Court in Kanthamma v. Veerareddi, : AIR1959AP550 . It is unnecessary to consider whether that decision can be taken as correct having regard to the decision of this Court in Balakrishna v. Parvathammal, 53 MLJ 494: AIR 1928 Mad 154; suffice it to say for the purpose of this case that it was not a case of a compromise decree. In that case the question arose as to the power of the Court in regard to an interlocutory order. So long as the main appeal is pending different considerations might arise; the court would have power to give such directions as are necessary for the doing of justice between the parties. That decision can-not obviously apply to a case like the present one, where the suit has been finally disposed of. Even in regard to an interlocutory order it has been held by this Court in 1928 53 MLJ 494: AIR 1928 Mad 154 that once an order of court has worked itself out, it is no longer competent for the Court to extend the time unless it be by an appropriate application for review of that order. Learned counsel for petitioner referred me to the decision of Wadsworth, J., in Sreepathi Balaiah v. Ramayya : AIR1941Mad706 , where it was held that if an error of the Court's officer in maintaining the entries would have resulted in some injustice to the parties, the court had inherent Power to rectify the mistake. That was a case where there was an error on the part of the Court or its officer; a Court an inherent power to correct its mistakes in certain cases. It cannot be said that in the instant case there was any such error. In these circumstances, the principle of the decision in 53 Mad LJ 494: AIR 1928 Mad 154 would apply and that would bar the court from extending the time.

(3) The civil revision petition fails and is dismissed. There will be no order as to costs. It is needless to point out that the petitioner will be entitled to take back the money paid into court.

(4) Revision dismissed.


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