M.M. Ismail, J.
1. The plaintiff in C.S. No. 18 of 1968 on the original side of this Court is the appellant herein. Having regard to the narrow scope of the appeal, it is unnecessary to deal with the pleadings in detail which gave rise to certain other issues and controversies raised before the learned trial Judge, but which no longer survive before us.
2. The suit instituted by the appellant is one for specific performance of an agreement to sell the premises known as 'Sea View' situate at No. 27, Santhome High Road, Mylapore, Madras, admittedly belonging to the respondent herein.
The respondent is the Managing Director of several mills situate in Coimbatore and other places. He is a permanent resident of Coimbatore, but was having the suit property for the purpose of his residence while going over to Madras. The case of the appellant was that she had advanced loans totalling a sum of Rs. 4,70,000 to the respondent herein by 24th December, 1966 made up of:
(1) A sum of Rs. 1,00,000 paid on 14th September, 1966;
(2) another Rs. 1,00,000 paid on 15th October, 1966;
(3) yet another Rs. 1,00,000 paid on 27th November, 1966; and
The sum of Rs. 1,70,000 paid on 24th December, 1966.
The further case of the appellant was that the respondent who promised to return the amounts by January, 1967 with profits had failed to repay the same: that when pressed for payment, he offered to sell the property referred to above; and that on 20th February, 1967 an agreement, Exhibit P-2, came to be executed by the respondent in which it was stated that the appellant had paid in all a sum of Rs. 4,70,000 as advance for the sale of the property to her and that the terms and conditions including the price of the property were to be settled in future. It was the further case of the appellant that on 9th April, 1967 herself and the respondent entered into a detailed oral agreement which was reduced to writing on 12th April, 1967 marked as Exhibit P-1, by which the price of the property was settled at Rs. 4,00,000 and the price of the furniture in the building was fixed at Rs. 1,20,000 and the appellant, having already advanced a sum of Rs. 4,70,000 paid a sum of Rs. 50,000 on that date that is, 12th April, 1967 and that the parties agreed to complete the transaction of sale within three months from that date. The further case of the appellant was that on 9th April, 1967 itself, namely, the date of the detailed oral agreement, formal possession of the suit property was given to her by the respondent, though the respondent took about a week to fully vacate the main bungalow. The appellant further alleged that the respondent wanted extension of time upto 31st December, 1967 to complete the sale and that in that connection an additional agreement marked as Exhibit P-1(a) dated 9th July, 1967 came to be executed. The plaint makes a detailed reference to Clause (d) of that agreement and states that that, clause was not valid and binding. We shall have occasion to refer to that clause as well as another clause in Exhibit P-1(a) later in the course of the judgment. The plaint proceeded to state further that in July, 1967 the respondent wanted a solatium of Rs. 5,000 and that the appellant agreed to pay that amount at the time of the execution of the sale deed and she so agreed only as a gesture of goodwill. According to her, from October, 1967 there was correspondence between the parties and tinder Exhibit P-15 dated 26th December; 1967 which was a letter from the respondent to the appellant, the respondent purported to cancel the agreement by virtue of Clause (d) in Exhibit P-1(a) and there was further correspondence and finally the appellant instituted the present suit praying for a decree for specific performance of the agreement for sale dated 12th April, 1967.
3. The respondent filed an elaborate and detailed written statement. In that written statement he contended that in the year 1965, he came into contact with the appellant, who was a young woman and became friendly with her, that intimacy grew between them, that in 1966 the respondent was In need of some finance on account of general adverse trade conditions and depression in the textile industry, but he did not ask for any loan from the appellant, that she herself volunteered to lend the amount, that it surprised the respondent as to how the appellant suddenly came by such huge amount to be in a position to advance the same to him and that when the respondent asked her, the appellant gave some explanation which did not fully convince him. We are not concerned with the further allegations which the respondent made in the written statement except to point out that he put forward the contention that the agreement was not intended to be acted upon, that it was not a completed agreement and that it was brought into existence merely at the request of the appellant herein to enable her to come and live with the respondent in the suit property, thereby escaping from the harassment of her own relatives and at the same time saving the respondent from embarrassment of visiting her in her place. There are also certain other allegations in the written statement to. which a detailed reference is not necessary except to point out that his case was that the suit property was under equitable mortgage with the South Indian Bank Ltd., Coimbatore, and it was agreed that the appellant should discharge that mortgage, that the property was worth about Rs. 10,00,000, that in any event it was worth not less than Rs. 8,00,000 to Rs. 9,00,000 and that it was on the basis of that valuation, and after taking into account the value of the equitable mortgage over the property, the price of the property excluding the furniture and fittings etc., was fixed at Rs. 4,00,000. He also contended that the value of the furniture and fittings was fixed at Rs. 1,25,000 and not at Rs. 1,20,000 as alleged in the plaint and that the respondent did not ask for any solatium of Rs. 5,000 as alleged by the appellant in the plaint.
4. The following issues framed for trial will reflect the other controversies raised by the respondent in the written statement:
(1) Whether the plaintiff is entitled to specific performance of the agreement dated 12th April, 1967 for the sale of the suit property?
(2) Whether the agreement dated 12th April, 1967 to sell the suit property was obtained from the defendant in the circumstances set out in paragraph 8 of the written statement?
(3) Whether the clauses in the supplemental agreement dated 9th July, 1967, were added in the circumstances set out in paragraphs 12 and 13 of the written statement?
(4) Whether Clause (d) of the supplemental agreement dated 9th July, 1967 is valid, enforceable and supported by consideration?
(5) Whether any further terms and conditions pursuant to Clause (d) of the supplemental agreement dated 9th July, 1967 were proposed by the plaintiff and if so whether there was any agreement on the same?
(6) Whether the defendant was entitled to withdraw from the transaction under Clause (d) of the Supplemental agreement dated 9th July, 1967?
(7) Whether the sale price fixed in the agreement was subject to the mortgage debt payable by the defendant to the South Indian Bank, Ltd., Coimbatore, and if so, to what extent?
(8) To what relief, if any, is the plaintiff entitled?
5. In addition to documentary evidence marked in the suit P.W.1, the husband of the plaintiff-appellant was examined as the sole witness on behalf of the appellant. Five witnesses including the respondent as D.W. 5 were examined on behalf of the respondent. A major portion of the oral evidence and the documentary evidence were intended to establish the real relationship between the appellant and the respondent. The learned trial Judge by his judgment under appeal, after elaborately considering the evidence in that behalf, came to the conclusion that the personal relationship between the appellant and the respondent was as alleged by the respondent. In substance, the conclusion of the learned trial Judge was that there was intimacy and friendly relationship between the appellant and the respondent ever since 1965 and that relationship continued to exist at the time when the agreement came into existence. After elaborately considering the evidence, the learned trial Judge recorded his findings the follows:
On issue No. 2 that the agreement dated 12th April, 1967 is neither sham or nominal nor void due to misrepresentation or undue influence and that it had not been obtained under the circumstances stated in para. 8 of the written statement; on issue No. 3, no definite finding is necessary; on issue Nos. 4 to 6 that Clause (d) of Exhibit P-1(a) the supplemental agreement is invalid, unenforceable and not supported by consideration and, therefore, there is no need for the plaintiff to propose terms and conditions pursuant to Clause (d) and that the defendant was not entitled to withdraw under the said clause; on issue No. 7 that the price in the agreement was subject to the mortgage debt payable by the defendant to the South Indian Bank Ltd., Coimbatore, to the extent of Rs. 3,45,000 and on issue Nos. 1 and 8 that the plaintiff is entitled to specific performance as per the agreement dated 12th April, 1967 subject to depositing the sum of Rs. 3,50,000 with interest.
Having recorded his findings on the various issues in the above terms, the learned Judge proceeded to state:
As it is in the evidence that the South Indian Bank Ltd., had already filed a suit and it is not clear as to whether any part of the mortgage amount had been paid off by the defendant himself, I direct the plaintiff to deposit the entire balance under the suit agreement, namely, Rs. 3,50,000 with interest at 11 per cent. (eleven per cent.) per annum from 1st January, 1968, the contract being one which should have been performed by 31st December, 1967 the extended date mentioned in Exhibit P-1(a): upto the date of deposit which should be within three months from this date.
6. Accordingly, the suit for specific performance is decreed and if the above condition regarding deposit is not fulfilled the suit shall stand dismissed. Under the circumstances parties to bear their own costs.
1. That the plaintiff herein do on or before 26th July, 1971 deposit into this Court to the credit of the above suit, the sum of Rs. 3,50,000 (Rupees three lakhs and fifty thousand only) being the balance of sale consideration under the suit agreement dated 12th April, 1967 (Exhibit P-1) in respect of the property set out in the Schedule hereunder together with interest at 11 per cent. per annum from 1st January, 1968 till the date of deposit;
2. That on deposit by the plaintiff herein as mentioned in Clause 1 supra, the defendant herein do (a) execute a sale-deed in favour of the plaintiff herein in respect of house, ground and premises No. 27, Santhome High Road, Mylapore, Madras-4, more particularly described in the Schedule hereto; (b) deliver over to the plaintiff upon oath all deeds and writings in his custody or in his power relating to the said property; and transfer the said property to the plaintiff herein free from the mortgage in favour of the South Indian Bank Ltd., Coimbatore, and free from all encumbrances;
3. That in default of deposit as directed in Clause 2 supra, this suit, do stand dismissed out of this Court; and
4. That the parties herein do bear their own costs in this suit.
We may immediately mention that the sum of Rs. 3,50,000 directed to be deposited comprised of a sum of Rs. 3,45,000 payable towards the mortgage created by the respondent in favour of the South Indian Bank Ltd., Coimbatore, and a sum of Rs. 5,000 payable to the respondent himself by the appellant, as part of the consideration for the purchase of the property. It is against this judgment and decree that the plaintiff in the suit has preferred the present appeal.
7. Since the defendant-respondent has not preferred any appeal against the decree, it is unnecessary for us to consider the question whether the learned trial Judge was right or wrong in granting the decree for specific performance on the facts and circumstances as found by him. In this appeal preferred by the plaintiff in the suit we have to consider only the grievance of the plaintiff as against the decree actually passed by the learned Judge.
8. Mr. M.R.M. Abdul Karim, learned Counsel for the appellant put forward the following three contentions in support of this appeal:
(1) The learned Judge was in error in holding that the consideration agreed to between the parties for the purchase included the obligation on the part of the appellant to discharge the mortgage created by the respondent in favour of the South Indian Bank Ltd., Coimbatore.
(2) The learned Judge had no jurisdiction to prescribe a time-limit for the appellant depositing the amount fixed by the learned Judge.
(3) The learned Judge equally had no jurisdiction to provide in the judgment as well as the decree that in default of deposit as directed by the learned Judge the suit shall stand dismissed, out of Court. It is these three contentions that we propose to consider in this appeal.
9. Taking the first contention for consideration, though the question has to be decided on the basis of the pleadings, of the parties as well as Exhibits P-2, P-1 and P-1(a) and the oral evidence in this behalf, in the first place it is desirable to refer to the documentary evidence itself. The earliest document that has got any relevancy to this point is Exhibit P-2. It is dated 20th February, 1967. It was executed only by the respondent herein. This document states that the appellant had advanced a sum of Rs. 1,00,000 on 14th September, 1966, another sum of Rs. 1,00,000 on 15th October, 1966, third sum of Rs. 1,00,000 on 27th November, 1966 and another sum of Rs. 1,70,000 on 24th December, 1966 to the respondent herein and that the respondent was acknowledging receipt of the total sum of Rs. 4,70,000 (Rupees four lakhs seventy thousand only) as advance towards the sale value of his Madras bungalow known as 'Sea View' situated at 27, Santhome High Road, Madras-4, which he had agreed to sell to the appellant on such terms and price which might be agreed upon mutually by both. The significant thing to be noticed in Exhibit P-2 is the reference to the sum of Rs. 4,70,000 as advance towards the sale value of the respondent's Madras bungalow.
10. Chronologically the next is the detailed oral agreement on 9th April, 1967, pleaded by the appellant in the plaint itself. According to the appellant, it is this detailed oral agreement reached on 9th April, 1967, between the parties pursuant to Exhibit P-2 that was reduced to writing in Exhibit P-1, Exhibit P-1 dated 12th April, 1967 has been signed by both the parties. That document states that in consideration of the contemplated sale of the bungalow in question by the respondent to the appellant herein and in the said context the respondent had permitted the appellant to occupy the said bungalow and premises and be in permissive possessor of the same and that the appellant had assumed and received such possession on 9th April, 1967. Clause (1) of this agreement provides that the respondent shall convey and assign to the appellant and the appellant will purchase and take sale in her own name of the property in question, together with all buildings, outhouses, superstructures, land and garden in the premises and all rights and appurtenances thereto belonging or therewith enjoyed or reputed to be so. Clause (2) fixed the price as Rs. 4,00,000 and also stated that out of the said sum of Rs. 4,00,000, a sum of Rs. 50,000 had been paid as advance by the appellant to the respondent, the receipt of which the respondent thereby acknowledged. Clause (3) provided that the transaction shall be specifically performed by both parties and completed before the lapse of three months from the date of the agreement, provided, however, it shall be open to the parties to extend the time for performance by mutual consent. Clause (4) provided that all expenses for the preparation of the Sale deed and the cost of stamp and registration charges shall be borne by the appellant herein. Clause (5) provided for the pre-emption right in favour of respondent herein in the event of the appellant proposing at any time to sell the property in question. Clause (6) repeated that in consideration of the contemplated sale, the appellant herein was allowed to be in permissive possession of the property, that she had assumed and received such possession on 9th April, 1967 and that notwithstanding such assumption of possession, all taxes, rates, charges and outgoings liable to be paid in respect of the property in question to the City Corporation or to any other authority upto the date of conveyance shall be borne by the respondent alone. The significant thing to be noticed in Exhibit P-1 is that it does not refer to Exhibit P-2 at all. Nor does it refer to the sum of Rs. 4,70,000 already paid by the appellant to the respondent as advance towards the sale price of the suit property as mentioned in Exhibit P-2. Exhibit P-1 proceeds as if the price was only Rs. 4,00,000 and the respondent had received out of the said sum of Rs. 4,00,000, only Rs. 50,000 as advance, thereby implying that the balance of RS. 3,50,000 was to be paid by the appellant for the purchase of the property. Exhibit P-1 does not also refer to furniture and fittings or their value.
11. After Exhibit P-1 there is a document, namely Exhibit P-1(a). There was some controversy as to whether Exhibit P-1(a) was a mere continuation of Exhibit P-1 or was an agreement supplemental to Exhibit P-1. But since the parties have agreed that they did enter into Exhibit P-1(a) on 9th July, 1967 the said controversy need not detain us any further.
As a matter of fact, Exhibit P-1(a) starts by stating:
Following are added as continuation to this memorandum of agreement entered into by both parties and recorded on this day the 9th of July, 1967.
Clause (a) of this agreement refers to the receipt of Rs. 4,70,000 by the respondent from the appellant and the acknowledgment thereof under Exhibit P-2, on 20th February, 1967.
Clause (5) states:
Both parties have now agreed to appropriate a sum of Rs. three lakhs and forty-five thousands from the above sum received towards the value mentioned in Clause 2 of this agreement and the balance of rupees one lakh and twenty-five thousands as agreed sale-value of the furniture's, fittings and all fixtures in the Sea View Bungalow, which are taken over possession by the second party (appellant herein) on 9th April, 1967.
Clause (c) provided that both parties had mutually agreed to extend the time limit fixed in Clause No. 3 of the agreement upto 31st December, 1967. Clause (d) is the clause which was the subject-matter of issues Nos. 4 to 6 before the learned trial Judge and the same is as follows:
It is expressly provided, however, that certain further terms and conditions are yet to be agreed upon by both parties concerning their personal sentiments, before putting through the transaction and execution of sale deed, which unless agreed upon mutually by both parties, the first party (respondent herein) shall have option to withdraw from the transaction, when this deed of agreement shall stand superseded, and repay to the 2nd party (appellant herein) the sums received towards the transaction and contained in this agreement within 6 months from the date of such superseding the agreement or within such period as may be extended thereon by the 2nd party (appellant herein) together with interest at 12% (twelve per cent.) per annum from the dates of actual receipt of the respective sums mentioned in this agreement.
It is pursuant to this clause that the: respondent purported to cancel the agreement and it is this clause which was held to be void not supported by consideration and unenforceable by the learned trial Judge. Clause (e) of this agreement is:
The 2nd party (appellant herein) is already aware of the existing charge in favour of M/s. The South Indian Bank Ltd., Coimbatore, with whom the title-deeds are under deposit.
12. These are the three documents which have a bearing on this question as to what was the consideration for the sale of the suit property agreed to between the parties, As we have pointed out already, in the plaint itself the appellant pleaded that there was a detailed oral agreement on 9th April, 1967 which was reduced to writing on 12th April, 1967. In paragraph 23 of the plaint, the plaintiff categorically stated:
The defendant expressly told the plaintiff that the suit property is free from any encumbrances, that he is the absolute owner and he will execute the sale-deed within three months from 12th April, 1967. Whether on 20th February, 1967 or 12th April 1967 he never mentioned any mortgage in respect of the said property. It is in June, 1967 the defendant said that some of the title deeds were with the South Indian Bank Ltd., Coimbatore, as it was required for the purpose of his being a Director. Even in the document of 9th July, 1967 it is mentioned only as follows:
The second party is already aware of the existing charge in favour of M/s. South Indian Bank Ltd., Coimbatore, with whom the title-deeds are under deposit.
The respondent in paragraph 23 of his written statement contended:
The allegation in paragraph 23 of the plaint about the mortgage not having been disclosed to the plaintiff is false. The contention in the said paragraph that the defendant represented that the title-deeds were with the South Indian Bank Ltd., as it was required for his being a director, that the defendant assured the plaintiff that he had not incurred any debt and that the plaintiff could not enquire the bank as they would not disclose anything on account of the defendant being a director of the bank, are all false, besides being utterly puerile. As the equitable mortgage was very well known to the plaintiff and as the price was also fixed only after taking the mortgage into consideration, the mortgage was omitted to be referred to in the agreement dated 12th April, 1967. When the omission was pointed out to the plaintiff, she agreed to Clause (e) of the supplemental clauses being added on 9th July, 1967 and Clause 'e' was added with her full and free consent.
As we have pointed out already, the only witness examined on behalf of the appellant was her husband, P.W. 1. He did not speak anything about the detailed oral agreement of 9th April, 1967. It was not the case of any of the parties that at the time when the detailed oral agreement was reached on 9th April, 1967 between the appellant and the respondent, anybody else was present. Under those circumstances, the only two persons who were competent to speak at out the terms agreed to on 9th April, 1967 were the appellant and the respondent. The appellant did not go into the box to speak as to what happened on 9th April, 1967 and what were the terms agreed to between the parties at the time of the oral agreement. On the other hand, it is the respondent who gave evidence as D.W.5 as to what happened when the oral agreement on 9th April, 1967 was arrived at between the parties. He categorically stated that it was agreed between the parties that the appellant had to discharge the mortgage due to the South Indian Bank Ltd., Coimbatore. In the absence of any contrary evidence, we are of the opinion that the learned trial Judge was fully justified in accepting the evidence of D.W.5 and holding that it was expressly agreed to between the parties on 9th April, 1967 that the appellant had to discharge the amount due on the mortgage to the South Indian Bank, Ltd., Coimbatore. As a matter of fact Clause (e) in Exhibit P-1(a) will have no significance except in the context of such arrangement. In fact, the appellant herself was not able to give any other acceptable explanation for the presence of Clause (e) in Exhibit P-1(a). Therefore, having regard to the evidence of D.W.5 and the failure on the part of the appellant to go into the box and speak to what happened on 9th April, 1967 the conclusion is irresistible that under the agreement it was the appellant who bad to discharge the mortgage due to the South Indian Bank, Ltd., Coimbatore.
13. This conclusion can also be reached from another angle. We have already referred to the fact that Exhibit P-2 mentioned the sum of Rs. 4,70,000 as advance for the sale of the property. Surprisingly Exhibit P-1 does not refer to this sum of Rs. 4,70,000 at all and it proceeds as if the parties were starting on a clean slate fixing the sale price as Rs. 4,00,000 and the respondent receiving an advance of Rs. 50,000 out of Rs. 4,00,000 on that day, thereby implying that the appellant had to pay the balance of Rs. 3,50,000 for purchasing the property. If the case of the respondent is to be accepted, it will clearly follow that the sum of Rs. 4,00,000 mentioned in Exhibit P-2 is in addition to the value of the furniture and fittings numely, Rs. 1,25,000 and the amount of Rs. 3,45,000 due to the South Indian Bank Ltd., Coimbatore. For instance, if the sum of Rs. 4,70,000 mentioned in Exhibit P-2 is added to the sum of Rs. 50,000 paid on the date of Exhibit P-1, namely, 12th April, 1967 the total amount will come to Rs. 5,20,000. According to Exhibit P-1 there is a balance of Rs. 3,50,000 and that will exactly represent the amount for which the decree has been passed now, comprising of Rs. 3,45,000 representing the amount due to the South Indian Bank Ltd., Coimbatore, and Rs. 5,000 being the balance of amount due to the respondent himself. As a matter of fact, the provision in Clause (4) of Exhibit P-1(a) will also support this conclusion.
14. The manner of apportionment provided in Clause (b) of Exhibit P-1(a) is also significant. It refers to the parties having agreed to appropriate a sum of Rs. 3,45,000 from the sum of Rs. 4,70,000 towards the value of Rs. 4,00,000 mentioned in Exhibit P-1 and the balance of Rs. 1,22,000 was agreed to be the value of the furniture and fittings and all fixtures in the building. It is pertinent to point out that notwithstanding the express stipulation contained in Exhibit P-1(a) that a sum of Rs. 1,25,000 out of the sum of Rs. 4,70,000 already paid should be appropriated towards the value of furniture and fittings and all fixtures, the appellant falsely stated in her plaint that the value of furniture and fittings was fixed only at Rs. 1,20,000 and that the respondent herein demanded a solatium of Rs. 5,000 in July, 1967 and that she agreed to pay the same merely as a gesture of goodwill. However, in the course of the trial this false case was given up and P.W.1 admitted that the value of the furniture and fittings agreed to was only Rs. 1,25,000, and be did not say a word about the alleged solatium of Rs. 5,000 agreed to be paid in July, 1967. As we have already pointed out, a sum of Rs. 3,50,000 was due under Exhibit P-1 and if that was correct, there would have been no difficulty for the appellant paying the entire sum of Rs. 3,50,000 by the time Exhibit P-1(a) came to be executed and there was absolutely no justification for merely appropriating the sum of Rs. 3,45,000 towards the balance of Rs. 3,50,000 leaving a small balance of Rs. 5,000 as yet to be paid by the appellant to the respondent. Consequently these terms in Exhibit P-2, Exhibit P-1 and Exhibit P-1(a) also will lead to the inference that it was the appellant who had undertaken to pay the sum of Rs. 3,45,000 due to the South Indian Bank Ltd., Coimbatore, on the mortgage created by the respondent over the suit property.
15. Mr. M.R.M. Abdul Karim learned Counsel for the appellant, relying upon Section 55(1)(g) of the Transfer of property Act and the decisions thereon, contended that normally the obligation to discharge the encumbrances on the property existing on the date of sale is that of the vendor, in the absence of a clear contract to the contrary excluding that obligation, and that in this case there was no such exclusion. It is not necessary for us to decide in this case whether Section 55 of the Transfer of Property Act can be applied to an agreement of sale at all or not. Even on the assumption that Section 55 of the Transfer of Property Act, applies to an agreement of sale, as we have already found that there was a clear and categorical term agreed to between the parties that the appellant alone will have to discharge the mortgage due to the South Indian Bank Ltd., Coimbatore, no further question can possibly arise in this context, because Section 55(1)(g) of the Transfer of Property Act, itself states that in the absence of a contract to the contrary, the seller is bound to discharge all encumbrances on the property then existing.
16. The learned Counsel for the appellant then contended that in a suit for specific performance of an agreement of sale, the Court has no jurisdiction to go into the adequacy or inadequacy of the consideration. We are of the opinion that this argument is misconceived. The learned trial Judge has not gone into the question of adequacy or inadequacy of the consideration for the purpose of deciding the question of enforceability of the contract. All that the learned trial Judge did was to refer to the value of the property for the purpose of finding out whether the case of the respondent that the appellant expressly agreed to discharge the mortgage could be true or not. We have already held that having regard to the evidence available it was the appellant who had agreed to discharge the mortgage in question and that therefore no further question could possibly arise. What the learned trial Judge did was to refer to the other circumstances which probablised the case of the respondent herein. In the first place the learned Judge referred to the fact that the equitable mortgage was created over the suit property in 1965 itself for a sum of Rs. 4,00,000. If the actual market value of the property as on 9th April, 1967 or 12th April, 1967 was Rs. 4,00,000, certainly the bank would not have advanced a sum of Rs. 4,00,000 on such property even in 1965. It was well-known that the price of immovable properties was continuously rising and therefore, if at all, the price in 1967 must have been more than the price in 1965. If even in 1965 the bank had advanced a sum of Rs. 4,00,000 on the security of the property, certainly the value of the property in 1965 must be much more than Rs. 4,00,000. It was this aspect of the matter that was taken into account by the learned trial Judge. Another aspect of the matter which was taken into account by the learned trial Judge was Exhibit D-12, an order made under the Urban Land Tax Act, fixing the market value of the lands at Rs. 13,000 per ground in 1963. Admittedly the suit property consists of about 29 grounds of land. Therefore if the market value of the land itself was Rs. 13,000 per ground in 1963, the value of 29 grounds of land would be round about Ps. 4,00,000 to be exact Rs. 3,77,000 even in 1963 and would be much more in 1967. In addition to that the learned Judge has referred to Exhibit D-34, a photo album containing several pictures of the suit bungalow and pointed out that it was not disputed that exhibit D-34 contained several pictures of the suit property from different angles and that it gave an idea of the nature and size of the bungalow. Considering the locality in which the property is situate the learned trial Judge stated that he had no hesitation in holding that the suit property (not including the furniture) must have been worth about Rs. 8,00,000 on the relevant date. It is admitted that the suit property is situate on the Santhome High Road, with the Santhome High Road on the west and the sea on the east. Under these circumstances admittedly the suit property had an advantageous location and that itself will be a contributing factor to the high value of the property. Therefore it is clear that the learned trial Judge referred to the actual market value of the property, only for the purpose of finding out whether the respondent's case that the appellant had agreed to discharge the mortgage due to the South Indian Bank Ltd., Coimbatore, could be true or not and not for the purpose of finding out whether because of the inadequacy of the price, the contract could be enforced specifically or not. Hence, we are of the opinion that there is no substance in this contention of the learned Counsel for the appellant.
17. As a result of the above consideration, we reject the first point raised by the learned Counsel for the appellant challenging the correctness of the conclusion of the learned trial Judge holding that under the contract entered into between the parties, it was the appellant who had agreed to discharge the mortgage due to the South Indian Bank Ltd., Coimbatore, subsisting on the property in question.
18. It is desirable and will be convenient to consider points 2 and 3 together. As we have pointed out already, the argument of the learned Counsel for the appellant is that the learned trial Judge had no jurisdiction to fix a time-limit, while calling upon the appellant to deposit the money into the Court, and also to provide that the suit shall stand dismissed in the event of the appellant failing to deposit the amount so directed. The learned Counsel placed very great reliance on a Bench decision of this Court in this behalf, in Abdul Bhaker Sahib v. Abdul Rahiman Sahib and Anr. : AIR1923Mad284 . Having regard to the very strong insistence which the learned Counsel made on the judgment of this Court as supporting his contention, it becomes desirable to refer to the facts as well as the reasoning of the Bench of this Court therein. That was a case which arose out of a judgment of the learned Judge on the Original Side of this Court. The learned Judge had held in a suit for specific performance:
I must therefore find for the plaintiffs and give them decree for specific performances on payment of Rs. 4,000. Time for payment two months.
In pursuance of this judgment, a decree Was passed providing:
(1) that, upon payment by the plaintiffs on or before the 19th day of December, 1921, of a sum of rupees four thousand only, the first defendant do execute and register a proper deed of conveyance of the properties in the schedule.
(2) that upon payment the first defendant do put the plaintiffs in possession of the properties together with all documents and title-deeds.
Before the expiry of the two months provided for in the decree, the first defendant bad given notice of appeal. Before the expiry of the said two months but after the notice of appeal, the plaintiffs preferred an application before the Judge in charge of the Original Side for extension of the time for paying the money and this application which was heard in January, 1922, that is, after the expiry of the two months, was ordered to stand over until the hearing of the appeal. When the appeal came up for hearing before the Bench, the respondent put forward a contention that since the money Was not deposited within two months as provided for in the decree by the learned trial Judge, the plaintiff-had lost irrevocably all their rights under the decree except the costs and that therefore it would be use less to occupy the time of the Court in considering the merits of the case in the appeal. It was this contention that was rejected by the Bench. Sir Walter Schwabe, C.J., stated:
The decree as drawn up, I am told, is the ordinary form of decree in use here in cases of specific performance. It may be that it is a convenient form in certain cases, though I have been unable to discover its history and how it came to be adopted. No form for a decree for specific performances is provided by statute or rule here, and it has been left to the Courts to devise a suitable and appropriate form. Specific performance is an equitable remedy which has been known and used by the Courts of Chancery in England for centuries and appropriate forms of judgment have been approved by learned Equity Judges in England and have now become almost stereotyped: and those at present in use will be found set out in set on Judgments under the title specific performance. On a perusal of them the first thing to be observed is that not one of those forms contained in the first instance a limit of time for payment of the purchase-money and not one attempts to make payment of the purchase-money by a certain date a condition of the continuance of the rights under the judgment. After the original judgment for specific performance it is the definite practice in England that all consequential relief by reason of any party failing to comply with the terms of the judgment must be sought by application to the Court by which the judgment was passed. Such applications are made by motion in the action showing that in England, after the original judgment the action is by no means ended but remains under the control of the same Court. If the default is made by the purchaser in paying the purchase-money there are several remedies open to the vendor. (1) He may on motion in the action obtain an order fixing a definite time and place for payment and delivery over of the conveyance and title-deed and can, after the expiration of that time, levy execution for the amount, if not paid. (2) He may apply by motion in the action for an order rescinding, not the judgment but the contract, and in order to succeed in such a motion. he had to satisfy the Court that there has been a positive refusal to complete, which it may be observed in the present case the respondent has certainly not proved. A similar right is given by Section 35 of the Specific Relief Act of 1877. (3) He can enforce his unpaid vendor's lien for the purchase-money and costs: (4) He can by motion in the action obtain an order for sale by the Court of the property when he will be at liberty to bid. The proceeds of the sale are paid into Court and the vendor gets his contract price, interest and costs and the purchaser the balance if any. Where the vendor is in default, the remedies are even more varied.
19. It Would seem to be absurd to hold that the mere fact that a date of completion is fixed in the original decree put an end to the action and that the control of the Original Court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may as in the present case, be of a greater value than the contract purchase-money, which, perhaps by some accident purchaser has failed to produce on the date fixed. In this particular case it is worth Observing that there is no evidence that the first defendant was ready to execute a conveyance or hand over the title-deeds in exchange for the money and in fact, so far from intending to complete he was appealing on the ground that the decree was wrong.
20. In my judgment it was intended by this decree that the payment of Rs. 4,000 by the date named should be a condition failing to comply with which would deprive the successful plaintiff of all his rights under the decree. In my judgment this decree is in the nature of a preliminary decree, the Original Court keeping control over the action and having full power to make any just and necessary orders therein including in appropriate cases the extension of the time. If I am Wrong in this and the proper interpretation of this decree is as contended for by the appellant, then, in my judgment, this decree is wrong, and I should., if necessary order that it be set right by eliminating the condition which ought not to have been imposed upon the successful plaintiff except at a much later date and upon definite refusal by him to complete. Even in that case such condition could only be imposed at the request of the defendant who as I have pointed out has other various remedies. As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use. Some words such as 'further consideration reserved' shall be added. But, personally, I should be prepared to say that the appropriate forms are those set out in Seton.'
The other learned Judge (Wallace, J.) also agreed with the above reasoning except to a small extent. Wallace, J., pointed out:
No special form for drafting a decree for specific performance is supplied by the Civil Procedure Code, as is supplied by it in the case of a decree in a pre-emption suit by Order 20, Rule 14, which directs that, if the purchase money is not paid as stipulated in the decree, the suit shall be dismissed with costs. Hence the analogy of decree, etc., in pre-emption suits and reported rulings thereon are not of assistance in this case. The form of decree drawn up in the trying Court is the general form adopted in this presidency for such decrees. But that it is in the nature of a preliminary and not final decree is, I think placed beyond doubt by Section 35 of the Specific Relief Act. As I read that Section, it lays down that when a decree for specific performance of a contract of sale has been passed and the purchaser makes default inpayment 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. By the decree for specific performance the Court sets out what it finds the real contract between the parties was, and declares that such a contract exists and gives what it considers a reasonable time within which the contract shall be carried out. Regarding the decree from this point of view, as a contract, it is clear in this case, as in most others of the same kind that time is not of the essence of the contract, and that, until the contract is rescinded by formal order or decree such time for performance, not being an essential part of the contract, may be varied by the Court which has declared what the essential terms of the contract are. It is clear as the learned Chief Justice has shown, that it must be within the power of the Court to vary the time within which the contract shall be performed, as difficulties might arise through no fault whatever of the parties preventing performance within the time specified in the decree; e.g., when a third party has within that period set up a bona fide claim of title to the property, it may even be necessary to direct specific performance to stand over for a reasonable but indefinite period, until that claim has been adjudicated.
We do not understand the learned Judge in that case laying down a proposition that the trial Court had no jurisdiction to fix a timelimit for depositing the money. As a matter of fact, both the learned Judges agreed that was the form prevalent in this presidency for drafting decrees in suits for specific performances. In fact, the learned Chief Justice himself had observed in the question Which we have extracted:
As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use.
Thus, the real point which the Bench considered was, whether such a decree should be treated to be a preliminary decree, the trial Court retaining full control over the suit, or it should be treated as a final decree. Only because the learned Judges took the view that such a decree must be treated as a preliminary decree, they observed that if it was intended to be a final decree the learned Judge had no jurisdiction to pass such a final decree. Therefore, the decision relied on by the learned Counsel for the appellant cannot be said to have laid down any proposition that the trial Court which passes a decree for specific performance has no jurisdiction at all to fix a time-limit for depositing the money due by the decree-holder, provided the decree is treated as a preliminary decree and the Court retains control over the entire action. If at all, the only passage in the judgment of Wallace, J., with which We do not agree is that which regards the decree itself as a contract. Equally, we do not agree with the learned Chief Justice when he observes that the vendor can succeed in his motion for rescission of the contract only when there has been a positive refusal on the part of the vendee to complete and a default on his part to comply with the direction of the Court is not sufficient. In other respects, if we may state with respect, in the absence of any express statutory provision to the contrary in this country, what the learned Judges have referred to is the correct legal position in respect of a decree for specific performance.
21. We may also point out that the observation of Wallace, J., regarding the fixing of time without any power to enlarge it later derives support from a subsequent decision of the Supreme Court in Mahanth Ram Das v. Ganga Das : 3SCR763 . In that case a Bench of the High Court, while deciding an appeal in favour of the appellant, passed a peremptory order fixing the period for payment of deficit court-fee and provided that on his failure to pay the deficit court-fee within the time, the appeal itself shall stand dismissed. With regard to such an order, the Supreme Court pointed out:
How undesirable it is to fix time peremptorily for a future happening which leaves the Court powerless to deal With events that might arise in between, it is not necessary to decide in this appeal. These orders turn out, often enough to be inexpedient. Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put them selves in order and avoid delay. They do not, however, completely stop a Court from taking note of events and circumstances which happen With in the time fixed. For example, it cannot be said that, if the appellant had started with the full money ordered to be paid and came well in time, but was set upon and robbed by thieves the day previous, he could not ask for extension of time, or that the Court was powerless to extend it. Such orders are not like the law of the Modes and the Persians. Cases are known in which Courts have moulded their practice to meet a situation such as this and to have restored a suit or proceeding, even though a final order had been passed.
22. The judgment of the Bench of this Court in Abdul Shaker Sahib v. Abdul Rahiman Sahib and Anr. : AIR1923Mad284 , Was followed by the Allahabad High Court in Someshwar Dayal and Ors. v. Widow of Lalman Shah and Ors. : AIR1958All488 .
23. The same view was reaffirmed by another Bench of this Court in Mohommadalli Sahib v. Abdul Khadir Sahib : (1930)59MLJ351 . In that case, a suit for specific performance was decreed with direction to the plaintiff to deposit Rs. 300 in three weeks from the date of the decree. The decree-holder 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. To revise that order a revision petition was filed before this Court. Jackson, J., held that:
in suits under Specific Relief Act where the decree has named as here a time within which payment should be made the Court can extend that period
and relied for this conclusion on the decision of this Court in Abdul Shaker Sahib v. Abdul Rahiman Sahib and Anr. : AIR1923Mad284 already referred to. The other learned Judge, who constituted the Bench namely, Thiruvenkata Achariar, J., also, took the same view. The learned Judge, after referring to the earlier decisions, observed:
The weight of authority, therefore, is decidedly in favour of the view that even in the case of a decree framed liked the decree in this case, which J 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 is such cases will be seriously crippled.
After referring to Section 25 of the Specific Relief Act, 1877, the learned Judge proceeded to say:
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 a 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.... 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 incase of default order rescission of the contract. See Fry on Specific Performance, 6th Edition, 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. See 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 that power when no such application has yet been made.
These views were approved by the Supreme Court in Hungerford Investment Trust Ltd. (In voluntary Liquidation) v. Haridas Mundhra and Ors. : 3SCR690 . In paragraphs 22 to 24 of that judgment, the Supreme Court observed:
22. It is settled by a long course of decisions of the Indian High Court that the Court which passes a decree for specific performance retains control over the decree even after the decree has been passed. In Mohommadalli Sahib v. Abdul Khadir Sahib : (1930)59MLJ351 , it was held that the Court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that the Court retains control over the decree, that the contract between the parties is not extinguished by the passing of a decree for specific performance and that the contract subsists notwithstanding the passing of the decree. In Pearisundara Dassee v. Hari Charan Mozumdar Chowdhury I.L.R.(1888) Cal. 211, the Calcutta High Court said that the Court retains control over the proceedings even after a decree for specific performance has been passed, that the decree passed in a suit for specific performance is not a final decree and that the suit must be deemed to be pending even after the decree. The same view was taken in Someshwa Dayal v. Widow of Lalman Shah : AIR1958All488 . In Anandilal Poddar v. Gunendra Kr. Roy : AIR1966Cal107 , Ray, J., speaking for the Court, said that the Court retains control over the matter even after passing a decree for specific performance and that virtually, the decree is in the nature of a preliminary one. In Tribeni Tewary v. Ramratan Nonia : AIR1959Pat460 , it was held that the Court retains seisin of the case notwithstanding the fact that a decree for specific performance has been passed and that the decree is really in the nature of a preliminary decree. Fry in his book (Fry on Specific Performance, 6th Edn. page 546 on Specific performance) states the law in England as follows:
It may and not infrequently does happen that after judgment has been given for the specific performance of a contract, some further relief becomes necessary, in consequence of one or other of the parties making default in the performance of something which ought under judgment to be performed by him or on h is part; as for instance, where a vendor refuses or is unable to execute a proper conveyance of the property, or a purchaser to pay the purchase-money....
There are two kinds of relief after judgment for specific performance of which either party to the contract may, in a proper case, avail himself:
(i) He may obtain (on motion in the action) an order appointing a definite time and place for the completion of the contract by payment of the unpaid purchase-money and delivery over of executed conveyance and title-deeds, or a period within which the judgment is to be obeyed, and, if the other party fails to obey the order, may thereupon at once issue a writ of sequestration against the defaulting party's estate and effects.
(ii) He may apply to the Court (by motion in the action) for an order rescinding the contract. On an application of this kind, if it appears that the party moved against has positively refused to complete the contract, its immediate rescission may be ordered: otherwise, the order will be for rescission in default of completion within a limited time....
23. In Halsbury's Laws of England, (Halsbury's Laws of England, 3rd Edition, Volume 26, 351-1) the law is stated as under:
Ancillary relief may be obtained after judgment in an action for specific performance where such further relief becomes necessary....
Either party may also obtain an order rescinding the contract in default of completion within a fixed time.
24. As the Court retained control over the matter despite the decree, it was open to the Court, when it Was alleged that the party moved against has positively refused to complete the contract to entertain the application and order rescission of the decree if the allegation was proved. We, therefore, think that the application of the appellant was competent.'
Again in paragraph 31 of its judgment, the Supreme Court observed:
A decree for specific performance is a decree in favour of both the plaintiff and the defendant in the suit. In Heramba Chandra Maitra v. Jyotish Chandra Sinha : AIR1932Cal579 , Rankin, C.J., speaking for the Court, said that a decree for specific performance operates in favour of both plaintiff and defendant and that the decree is capable of being executed by either see also Bai Karimabibi v. Abderehman Sayad Banu : AIR1925Bom26 .
24. All the above decisions merely emphasise the fact that a decree for specific performance is in the nature of a preliminary decree, that a mere passing of such a decree does not put an end to the suit and that the trial Court retains complete control over the entire proceedings so as to adjudicate upon the rights of the parties arising out of the preliminary decree passed by it.
25. It would have been seen that these decisions referred to Section 35 of the Specific Relief Act, 1877. We are of the opinion that the changes made in the Specific Relief Act, 1963 made the position explicitly clear. Section 35 of the Specific Relief Act, 1877 is as follows:
35. Any person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Court in any of the following cases, namely:
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.
26. When the purchaser or lessee 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 or lessor the rents and profits, if any, received by him as such possessor.
27. 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 indefault, or altogether, as the justice of the case may require. There Was some difficulty in understanding the meaning of the expression, 'in the same case' occurring in the last paragraph of that section and there were also certain other difficulties resulting from the structure of the statutory provisions. In view of this only, the Law Commission of India in its Ninth Report stated in Paragraph 80 thereof as follows:
80. In England, where the defendant in an action for specific performance fails to comply with a judgment against him, the plaintiff may, at his election, move in the action to have the contract rescinded. This right extends to the vendor and the vendee; The Indian Courts have taken the same view.
28. In all probability, the English rule was sought to be adopted, without modification, in the third paragraph of Section 35(c) of our Specific Relief Act. But, as has been pointed out by Collett, as well as in the cases mentioned below, the words, 'in the same case' are not happily chosen and 'It is not at all clear to what these words in the same case refer whether to the second paragraph or the first paragraph of Clause (c).'
29. The question is, whether the vendor or lessor should have the option of bringing a separate suit for rescission, in a case coming under Clause (c). As the section stands, he has the option of bringing a separate suit under the first paragraph of Section 35 or to apply for rescission in the same suit under the third paragraph of the section.
30. But, as Banerji observes, there is no reason why the vendor or lessor should be allowed to harass the other party in a separate proceeding when the remedy of rescission can be made available in the same suit.
31. We therefore propose a new section which will enable the vendor or lessor to apply for rescission in the suit for specific performance, if the purchaser or lessee fails to comply with the terms of the decree. In view of this new provision, Clause (c) of Section 35 and the two succeeding paragraphs become Unnecessary and; should be omitted.
In view of the above only, the statutory provisions were recast in the Specific Relief Act of 1963. Section 28 of the 1963 Act, is relevant and the same is as follows:
28. (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not within the period allowed by the decree or such further period as the Court may allow, pay the purchase-money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
(2) Where a contract is rescinded under Sub-section (1), the Court-
(a) shall direct the purchase or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor; and
(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.
(3) If the purchaser or lessee pays the purchase-money or other sum which he is ordered to pay under the decree within the period referred to in Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:
(a) the execution of a proper conveyance or lease by the vendor or lessor;
(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.
(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.
(5) The costs of any proceedings under this section shall be in the discretion of the Court.
Thus it will be seen that Section 28 of the 1963 Act, while providing for the remedy of rescission of the contract in the same suit has actually provided that such a relief can be obtained only in the same suit and that no separate suit in respect of such relief could be instituted. In view of the express provisions contained in Section 28(1) of the 1963 Act, there can be no difficulty in holding that the Court, while decreeing a suit for specific performance, can prescribe a time limit for deposit of the money by the decree-holder and also extend the time on application by the parties, if the circumstances of the case justify or warrant such an extension, and this is made clear from the use of expression, 'within the period allowed by the decree or such further period as the Court may allow.' In the present case, the decree of the learned Judge having been passed on 26th April, 1971 it is Section 28 of the Specific Relief Act, 1963, that governs the decree. Consequently it is clear that the learned Judge had full jurisdiction to prescribe the period of three months for the appellant depositing the amount found to be payable by her.
32. The only other question is, whether the learned Judge had jurisdiction to provide that the suit shall stand automatically dismissed, if the appellant committed default in making the payment within the time stipulated in the decree. Having regard to the decisions, which we have referred to already, holding that the decree in a suit for specific performance is in the nature of a preliminary decree, and also having regard to the express provisions contained in Section 28 of the Specific Relief Act, 1963, which constitute the statutory crystallization of the legal position in this behalf, we are clearly of the opinion that the learned Judge had no jurisdiction to provide that if the appellant committed default in making the deposit within the time stipulated in the decree, the suit shall stand dismissed, since that will destroy the character of the decree as a preliminary decree and disable the Court from granting the reliefs provided for in Section 28(3), as occasion may warrant.
The result of this will be, the O.S. 3 Appeal will stand allowed only to the limited extent of deleting Clause (3) of the decree. In other respects, the appeal shall stand dismissed. Since the appellant had substantially failed, she will pay the costs of the respondent.
C.M.P. Nos. 3227 and 3228 of 1972:
33. These two petitions have been filed by the appellant in the appeal. Both the petitions are purported to have been filed under Order 36, Rule 6 of the Original Side Rules of this Court read with Section 151 of the Code of Civil Procedure. The prayer in the former petition is to condone the delay of 5 months and 14 days in payment of the money due on the mortgage of the suit property, since the respondent has not suffered any loss on account of the delay. The prayer in the latter petition is to direct the respondent herein to execute and get registered a sale-deed in respect of the suit property.
34. A common affidavit has been filed in support of these petitions. In that affidavit, in addition to setting out the facts of the case and the contentions of the respective parties in the suit and the decision of the learned trial Judge, it is stated that on 31st January, 1972, the appellant-petitioner paid the South Indian Bank a sum of Rs. 5,97,ooo and obtained a registered assignment of all the rights Which the South Indian Bank had against the suit property and against the respondent, that no money was due to the bank in respect of the mortgage in question that thus she has paid to the bank not only the interest from 1st January, 1968 but also the interest payable by the respondent as per the decree from 29th September, 1965 to 1st January, 1968 and that she was taking separate steps for collecting the amounts payable to her by the respondent. By Way of justification for excusing the delay, it was stated that the learned trial Judge did not take into account, in fixing the time-limit, the fact that a sum of nearly rupees five lakhs had to be deposited by the appellant as per the decree and for arranging such a huge amount, three months time was barely sufficient and that too even without getting a decree copy and without allowing time for obtaining the decree copy, and that therefore the condition laid by the learned Judge Was very onerous and impossible of fulfillment as far as the appellant was concerned.
35. We are of the opinion that the appellant herein is not entitled to the relief she has asked for in C.M.P. No. 3227 of 1972. The question of condoning the delay in the performance of any act by a party will arise only when the Court has directed a particular party to do a thing within a particular time and the concerned party has done it, not within the time, but after the expiry of the time. Such a question can and will arise only when the party carries out the direction of the Court and when the party does something else which is not directed by the Court to be done, the question of the Court condoning the delay does not arise. In this particular case, what the Court directed the appellant to do in the decree was to deposit a sum of Rs. 3,50,000 into the Court to the credit of the suit. But what the appellant claims to have done is that she had paid a sum of Rs. 5,97,000 to the South Indian Bank Ltd., Coimbatore, and obtained an assignment of the mortgage created in favour of that bank by the respondent over the suit property. Consequently what the appellant has done is not what the Court directed her to do. As a matter of fact, as submitted by the learned Counsel for the respondent, the direction of the Court to the appellant to deposit the amount into the Court to the credit of the suit Was a deliberate one. As we have extracted already from the relevant portion of the judgment, the learned trial Judge has stated that the South Indian Bank Ltd., Coimbatore, had already filed a suit and that it Was not clear as to whether any part of the mortgage amount had been paid off by the defendant himself. That was the reason why the Court directed the appellant to deposit the entire balance due under the suit agreement, namely Rs. 3,50,000 with interest into the Court to the credit of the suit. The learned Counsel for the respondent, in our opinion, very rightly contended that the matter of payment by the respondent to the South Indian Bank Ltd., Coimbatore was entirely a matter between the respondent and the bank and he may pay more or he may pay less and that was not the concern of the appellant and that the appellant had to deposit into the Court the amount directed by the Court in the judgment and the decree. Consequently, it is clear that the payment of the amount by the appellant to the South Indian Bank Ltd., Coimbatore, as well as obtaining an assignment of the mortgage in her favour is not complying with the direction of the Court by depositing the sum of Rs. 3,50,000 into this Court to the credit of suit. We may also point out that notwithstanding the definite stand taken by the respondent in the affidavit filed in support of his petitions C.M.P. Nos. 12748 and 12749 of 1974 contending that the decree passed by the learned Judge was a conditional decree and on the failure of the appellant to fulfil the condition, it had worked itself out and the suit stood dismissed and the appellant did not seek for and obtain an order from the appellate Court staying the operation of the decree in this behalf, the appellant upto this moment has not come forward with any application for extension of time for complying with the direction contained in the decree, even though she alleges that she was prompt in paying a sum of Rs. 5,97,000 to the bank and obtaining an assignment of the mortgage.
36. Under these circumstances the question of condoning any delay in the action of the appellant herein does not arise and therefore C.M.P. No. 3227 of 1972 is dismissed.
37. With regard to the second petition namely C. M. P. No. 3228 of 1972, as we have pointed out already, the prayer is for a direction to the respondent to execute and get registered a sale-deed in respect of the suit property. The justification for this prayer is that the appellant has done what she was directed to do in the form of paying the sum of Rs. 5,97,000 to the South Indian Bank Ltd., Coimbatore, and obtaining an assignment of the mortgage.
38. For the reasons we have already indicated, the appellant had not complied With the direction of the Court and she did something else which she was not directed to do and therefore the allegation that since the appellant had complied with the direction of the Court, the respondent should be directed to execute the sale deed is untenable.
39. In this context, we may point out that there is one significant thing which has to be taken note of. While directing the appellant herein to deposit the sum of Rs. 3,50,000 into the Court to the credit of the suit, the learned. Judge made it clear that out of the said sum of Rs. 3,50,000 a sum of Rs. 5,000 was part of the consideration payable to the respondent himself and the balance of Rs. 3,45,000 was payable to the South Indian Bank Ltd., Coimbatore, on the mortgage. As a matter of fact, even in the plaint the appellant-plaintiff admitted that she had agreed to pay a sum of Rs. 5,000 to the respondent herein though she called it a solatium, and stated that she was willing to pay the same. So far there is no averment in any of these affidavits that she had deposited the sum of Rs. 5,000 as directed by this Court or that she is ready and willing to pay that amount. As a matter of fact, upto this moment there is no whisper on the part of the appellant about her liability to deposit this sum of Rs. 5,000 and her readiness and Willingness to comply with the direction of the Court in this behalf. So long as that condition has not been complied With, the appellant herein will not be entitled to the direction which she has prayed for.
40. The conclusion of ours is independent of our earlier conclusion, namely, that by taking an assignment of the mortgage of the alleged payment of Rs. 5,97,000 to the South Indian Bank Ltd., Coimbatore, the appellant had not complied with the direction of this Court.
41. In view of the above conclusion which we have reached, We are not deciding the question whether these two petitions for such a relief under Order 36, Rule 6 of the Original Side Rules of this Court read with Section 151 of the Code of Civil Procedure, are maintainable at all or not, at this stage, before us.
Consequently, C.M.P. No. 3228 of 1972 also fails and is dismissed.
C.M.P. NO. 12748 and 12749 of 1974:
42. These two petitions have been filed by the respondent in the appeal. The prayer in the former petition is to direct the appellant in the appeal to deliver possession of the suit property pending disposal of O.S.A. No. 24 of 1972. The prayer in the latter petition is for appointment of a Receiver/Commissioner to take possession of the suit property with all the fittings, furniture, fixtures and silver articles found therein and to hold the same in custodia legis and under orders of Court, after taking a full inventory of the furniture and movables and to furnish a full report to this Court.
43. As far as the former petition is concerned, since the direction was prayed for only pending disposal of the appeal and since the appeal itself has now been disposed of, there is no question of passing any orders on that petition. Consequently that petition is dismissed.
44. As far as C.M.P. No. 12749 of 1974 is concerned, by an order dated 14th November, 1974 a Bench of this Court appointed a Commissioner to take an inventory in the presence of both the parties and to file the same into Court as soon as he has taken it. By the same order, this Court also declined to grant the prayer for taking possession. Pursuant to the order of this Court, the Commissioner appointed by the Court has taken an inventory and filed the same into this Court. Once the Court has already declined to grant the prayer for taking possession and has appointed a Commissioner to take an inventory as prayed for and that commissioner has taken an inventory and filed the same into the Court, there is nothing more to be done in that petition. Consequently that petition also is dismissed.
45. There will be no order as to costs in any of these petitions.