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Bhutnath Das and ors. Vs. Sahadeb Chandra Panja - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Revn. Case No. 2526 of 1957
Judge
Reported inAIR1962Cal485,66CWN645
ActsCode of Civil Procedure (CPC) , 1908 - Sections 148 and 151; ;Specific Relief Act - Section 35
AppellantBhutnath Das and ors.
RespondentSahadeb Chandra Panja
Appellant AdvocateSudhir Kumar Dutta, Adv.
Respondent AdvocateA.P. Chatterjee and ;D.N. Tiwari, Advs.
Cases ReferredGokul Prosad v. Fattelal
Excerpt:
- .....on the 23rd august 1957 the trial judge passed the following order:'ordered that the suit be decreed on contest with costs. plff's alternative prayers for reconveyance of the property is allowed. plaintiffs shall deposit the sum of rs. 14725/- in favour of the defendant within a fortnight from to-day in court. if the deposit is made within the specified time, the defendant shall execute a deed of re-conveyance in respect of the suit properties in favour of the plffs. after the plffs would approve the draft of the deed of re-conveyance. if the defendant fails to execute the deed of re-conveyance within one month from to-day after the deposit of the said sum by the plaintiffs, the plaintiffs will be at liberty to have a deed of re-conveyance executed in their favour by this.....
Judgment:

Das Gupta, J.

1. This case raises a question of considerable importance and of some difficulty. The question is whether a trial court after it has ordered specific performance of a contract, on a sum or money being put in within a specified time and also ordered that if the money is not put in within that date, the suit would stand dismissed, has jurisdiction thereafter to extend the time.

2. The petitioner Bhutnath Das and others brought a suit for redemption of a mortgage or alternatively for specific performance for an agreement for re-conveyance. On the 23rd August 1957 the trial Judge passed the following order:

'Ordered that the suit be decreed on contest with costs. Plff's alternative prayers for reconveyance of the property is allowed. Plaintiffs shall deposit the sum of Rs. 14725/- in favour of the defendant within a fortnight from to-day in court. If the deposit is made within the specified time, the defendant shall execute a deed of re-conveyance in respect of the suit properties in favour of the plffs. after the plffs would approve the draft of the deed of re-conveyance. If the defendant fails to execute the deed of re-conveyance within one month from to-day after the deposit of the said sum by the plaintiffs, the plaintiffs will be at liberty to have a deed of re-conveyance executed in their favour by this court. Court-fee paid on the plaint is sufficient. If the plffs fail to make the deposit within the specified time then the suit shall stand dismissed on contest with costs.'

On the 30th August, 1957 the plaintiffs filed a a petition purporting to he under Sections 148 and 151 of the Code of Civil procedure praying for extension of time for making the deposit by three months. The learned Subordinate Judge was of opinion that the court had by making the order that the suit shall stand dismissed in the event of the failure of the defendant to deposit the money within the time fixed finally lost seisin of the suit and could not enlarge the time. He was further of the opinion that even, if he had discretion in the matter it would be unreasonable to extend the time. Accordingly he rejected the application. This Rule is directed against his order rejecting the application for extension of time.

3. The main question is whether the trial court has in such a case jurisdiction to extend the time. If it has jurisdiction the question whether on the facts of the case an order should have been passed in exercise of that jurisdiction will have to be considered. If the court has any jurisdiction to extend the time it must be either under Section 148 and 151 of the Code of Civil Procedure. Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Thus where the court makes an order in an application under Order 9, Rule 13 of the Code of Civil Procedure setting aside a decree on terms as to costs or payment into court of any sum of money by a certain date and fixes a period for that payment the provisions of this section will apply as the act for the doing of which the period has been fixed is one 'prescribed or allowed by this Code. It was in view of the provisions of this section that this Court extended the time in Bajranglala v. Smt. Solaki : AIR1950Cal564 . It is to be noticed that Roxburgh, J. there said that if the order of dismissal had operated the provisions of Section 148 of the Code of Civil Procedure will not entitle the court to extend the time. The extension of time which was granted was, however, under Section 148 ot the Code of Civil Procedure. If the deposit of money that was ordered in this case could be considered to be an act prescribed or allowed by the Code there would be no doubt, in my opinion, that the court had jurisdiction under Section 148 C. P. C. to extend the time. I cannot see, however, how this deposit of money for the performance of the contract can be considered to be an act either prescribed or allowed by the Code. I have no hesitation, therefore, in holding that Section 148 C. P. C. has no application.

4. The question whether Section 151 of the Code of Civil Procedure gives the court jurisdiction to extend the time is more difficult. In the first place we have to remember, that if the court has lost seisin of the case altogether there is no scope for the application of Section 151 C, P. C. It is only if the court has retained jurisdiction in the litigation that the question of making any order in inherent jurisdiction arises. If jurisdiction had already ceased to exist the scope of making order in the inherent jurisdiction of the court totally disappears. The real question, therefore, is whether in a case like this where an order has been made for the payment of certain money within a certain time for the purpose of getting specific performance and at the same time an order has also been made that if the money is not paid the suit will stand dismissed, the court retains jurisdiction. Though not without hesitation, I have reached the conclusion that in such a case it will be unrealistic and unjust to say that the court retains jurisdiction. Whether the court has retained jurisdiction or not will, in my view, depend very much on the substance of the directions given. If in granting a decree for a specific performance the court makes it conditional on the payment being made within a certain time and it appears that the time specified was intended by the court to be the essence of the order, it would be unreasonable, in my opinion, to hold that the court has still retained jurisdiction. Where a decree for specific performance is made and at the same time a direction is given to the plaintiff to put in the money within a certain time and there is no indication that time is the essence of the order, it might be possible and ordinarily reasonable to say that though a time has been Specified for the performance of the Act, the court has not finally dealt with the matter and retains jurisdiction to pass such other orders as may appear to it to be reasonable. Where, however, the court makes also an order that if the amount is not deposited within the time specified the suit will stand dismissed,I find it difficult to agree that the court retains any jurisdiction whatsoever. It has been said that if the amount is put in within a certain time and the defendant does not carry out the direction of the court as regards execution of the deed of re-conveyance, the plaintiff will be at liberty to have a deed of reconveyance executed in his favour by the court and so the court retains jurisdiction in the matter. It appears to me wrong to say that this is retention of jurisdiction in the judicial determination of the suit. When an order of the nature indicated has been made the judicial determination is complete and there is nothing more to be done by the court in the litigation in its judicial capacity. What has to be done if and when the plaintiffs apply to have a deed of re-conveyance by the court is ministerial work. The fact that the court may have, in the case where the deposit is made within the time but still the defendant fails to execute the deed within the, time as directed by the court, have to take steps does not, in my Opinion, justify the conclusion that the court has retained jurisdiction in the suit.

5. In our own Court it was decided in Kshetra Mohan v. Gour Mohan : AIR1934Cal21 that where a certain time is fixed by a decree of the court for taking some steps and it directs that on failure of doing so within the time limited the case should stand dismissed, the court has no jurisdiction to extend the time limited by the decree. That, it is true, was not in a case of specific performance. An objection under Section 47 of the Code of Civil Procedure having been rejected an appeal was taken to the court of the Subordinate Judge. The Subordinate Judge made an order that Rs. 30/- should be paid within seven days of the order and further said: 'If the payment of Rs. 30/-be not made according to the above direction the appeal shall stand dismissed with costs'. The sum was not paid during the seven days and on 6th June 1932, which was the seventh day from the day of the order the judgment-debtor put an application for time to deposit the amount. The application was allowed by the Court below. This court, however, held that the executing court had no jurisdiction to extend the time having lost jurisdiction in the case as soon as it made the order that on failure to deposit the amount within the time limited the case should stand dismissed.

6. It seems to me that we are bound by this decision to hold in the present case also that the trial court lost jurisdiction in the suit as soon as it made the order directing the payment within a certain time and further directing that on failure of the deposit being made within the time limited the case should stand dismissed.

7. This, as far as we could discover, is only decision of any Division Bench of this Court on this question. Reference has been made to a recent decision of Sarkar, J. sitting singly, printing and Industrial Machinery Ltd. v. Swastika Press Ltd. 90 Cal LJ 105. The facts in that case were that upon defendant's application for stayof execution of a decree on the ground that a suit by the defendant against the plaintiff for a larger sum was pending, it was ordered by the court that execution would be stayed on defendant's furnishing security for the decretal amount within a fortnight and that on defendant's default to furnish security within a fort-night the application for stay would sand dismissed. The defendant failed to furnish security within a fortnight and thereafter applied for extension of time. It was held that the court had jurisdiction to extend time inasmuch as the order, by reason of the default had only terminated the application for stay and had no effect on the main proceeding. This decision is of no assistance for our present purpose where by the result of the default order the suit itself will stand dismissed.

8. The Madras High Court had to consider in Abdul Shaker v. Abdul Rahiman, ILR 46 Mad 148: (AIR 1923 Mad 284) whether after the plaintiff had been directed to deposit the money for obtaining a specific performance time could be extended. The order of the trial court that had to be considered in that case was in these words:

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

It is to be noticed that there was no direction that on the failure to make payment within the time directed the suit would stand dismissed. The court held that the time fixed was not a condition and further held that if the correct interpretation of the words used by the trial Judge was that the time fixed was a condition the order should be varied so that the time should not be made a condition. Reference was made to the different forms in use in decree for specific performance in England and it was said that the time fixed should not be made a condition for the purpose of the decree. In a later case before the same High Court (Mahommadalli Sahib v. Abdul, Kadir, 59 Mad LJ 351) Jackson and Thiruvenkata Achariar JJ. held that the time fixed may be taken as a general indication of what is reasonable and is not an absolute condition. It has to be noticed that in that case also there was no default clause and the order made was 'that on the appellant (plaintiff) depositing Rs. 300 in three weeks from, this date in the Lower Court, the respondent do execute a sale-deed to the appellant in respect of the scheduled site and do put him in possession of the same'. These decisions are, therefore, of no assistance to us for our present purpose. For, as I have stated earlier, the decision of the question whether the court has retained jurisdiction or not will depend on the substance of the direction it has given.

9. There is, however, a decision of the Nagpur High Court in Gokul Prosad v. Fattelal ILR 1945 Nag 924: (AIR 1946 Nag 29) where even though the order itself stated that if the plaintiff failed to deposit the amount in court in time his suit would stand dismissed with, costs, Niyogi, J. sitting singly held relying, itappears on the decision of ILR 46 Mad 148: (AIR 1923 Mad 284) already referred to, that such a decree is in the nature of a preliminary decree and it was open to the lower Court to extend the time fixed. I find it difficult to understand why the mere fact that it is a preliminary decree, that is after the amount has been paid something more has to be done, is a reason that keeps the jurisdiction of the court alive. If that were so, it might well be argued that after a preliminary decree for partition has been made determining the shares of the parties the court has still jurisdiction to make further order as regards the matter of shares or that where in to suit for specific performance the court has said that specific performance will be granted on payment of say, Rs. 60,000/-, the court retains jurisdiction to alter sum for the purpose. That, in my opinion, is quite out of the question. Having dealt with the matter judicially for the purpose of preliminary decree it has lost jurisdiction for making any order in connection with the preliminary decree. The only way the preliminary decree can be varied is either by way of appeal or by review. The fact that the order made in specific performance fixing the time for deposit of money can be held to be of the nature of a preliminary decree is, in my opinion, no reason to think that the court retains jurisdiction in the master.

10. Reference has been made also to Section 35 of the Specific Relief Act. It is said that the contract is alive until a suit for decision of the contract under Section 35 is brought. Section 35 provides inter alia that 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 case where the decree for specific performance of the 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. The argument is that the mere fact that the purchaser had made default in the payment of the purchase money does not result in the contract coming to an end. It is not necessary for our present purpose to consider this question. It is to fee noticed, however, that in the very same section the Legislature has further provided that '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 in default, or altogether, as the justice of the case may require'. It seems to me that when the court makes an order that in default of the deposit being made within the time as directed, the suit will stand dismissed the court is in substance making an order as contemplated under the concluding portion, of Section 35 of the Specific Relief Act.

11. For all these reasons I have come to the conclusion that the proper view to take is that the court after making an order in the form in which it has made in the present case, does not retain any jurisdiction in the litigation and subsequently cannot make any order under Section 151 of the Code of Civil Procedure.

12. I would accordingly discharge the Rule with costs.

Debabrata Mookerjee, J.

13. I agree.


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