Patna High Court
Ramdhani Ram vs Sital Prasad Ram on 16 July, 1958
Equivalent citations: AIR1959PAT181, 1958(6)BLJR616, AIR 1959 PATNA 181
Author: V. Ramaswami
Bench: V. Ramaswami
ORDER
1. In this case the petitioner brought a title suit against the opposite party for specific performance of a contract. The suit was dismissed by the lower court, but the petitioner preferred an appeal and the appellate court allowed the appeal and ordered that the defendant should execute and register a sale deed in respect of the suit land in favour of the plaintiff "within three months from the date of the judgment, failing which a sale deed will be executed and registered by the lower court in favour of the plaintiff and the cost of the same would be recoverable from the defendant."
The appellate court, further ordered that the plaintiff should deposit the balance of the consideration money, namely, Rs. 45/-, in the court within two months from the date of the judgment, failing which the suit shall stand dismissed.
The time for depositing the balance of the consideration money expired on 4-6-1955, but no deposit was made by the plaintiff. On 22-7-1955, the plaintiff applied for permission to deposit the money and prayed that the delay should be excused because he was lying seriously ill. The application was rejected by the appellate court on the ground that the court was functus officio and had no longer the control over the proceedings and had no jurisdiction to extend the period of time fixed in the decree.
2. The petitioner has obtained a rule from the High Court against this order of the learned Subordinate Judge. The contention put forward on behalf of the petitioner is that the decree in a suit for specific performance of a contract for sale, fixing the time for payment of the purchase money, is in the nature of a preliminary decree and the court has jurisdiction to extend the time for payment of the consideration money in an appropriate case even beyond the time fixed in the decree itself.
In support of this proposition learned counsel relied upon Abdul Shaker Sahib v. Abdul Rahiman Sahib, ILR 46 Mad 148: (AIR 1923 Mad 284), where it was held that in a suit for specific performance of a contract for sale the original court which passed the decree had control over the action and had full power to make any just and necessary orders therein including in appropriate cases, the extension of time limited by the decree for payment of the consideration money.
In our opinion, the principle laid down in the Madras decision has no application to the present case, because the form of the decree made in the present case by the learned Subordinate Judge on 4-4-1955, is quite different from the decree which was the subject-matter of consideration in the Madras case. In the present case the order of the Subordinate Judge is that "the plaintiff should deposit the balance of the consideration money, namely, Rs. 45/-, in court in favour of the defendant within two months from the date of the judgment, i.e., 4-4-1955, failing which the suit shall stand dismissed".
The position in the Madras case was that the decree did not provide for dismissal of the suit in default of payment within the time prescribed. So the view taken by the learned Judges in that case was that by reason of the default the proceedings were not dead but were in a comatose condition.
That was the gist of the decision of the Madras case and, therefore, it was held by the learned Judges of that Court that the original court had still control over the action and had full power to make any just and necessary orders therein, including in appropriate cases, the extension of time limited by the decree. In the present case the nature of the decree passed is quite different and there is an express provision that in default of the payment of the amount within two months from the date of the judgment the suit shall stand dismissed.
We are consequently of opinion that in the present case the ratio of the Madras case has no application and the learned Subordinate Judge was right in holding that he had no jurisdiction to allow the application for time made by the plaintiff, and therefore, the application must be dismissed.
Counsel on behalf of the petitioner also referred to a decision of the Nagpur High Court in Gokul Prasad v. Fattelal, AIR 1946 Nag 29. But that case is also different, because the order was made by the High Court in an appeal from the decree made by the trial court in a suit for specific performance of a contract for sale, and in deciding that appeal the High Court did alter the decree and extend the time for payment by substituting a period of three months in place of twenty one days.
The position in the present case is obviously different, as it is not open to the petitioner in this case to ask us to modify the decree for specific performance in the revision application. Learned counsel for the petitioner also referred to Section 35 (c) of the Specific Relief Act and submitted that where a decree for specific performance of a contract is made and the purchaser makes default in payment of the purchase money, it is open to the plaintiff to sue for rescission of the contract.
The section also provides that even in a suit for specific performance it is open to the court, in case the money is not deposited by the plaintiff within the time granted, to rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case mav require. Counsel for the petitioner may be right in saying that the decree passed in this case is not a proper decree and is defective in certain respects, but the remdy open to the petitioner is by way of an appeal from the decree or by way of a review from that decree, if there is case for a review; but so long as the decree is not modified in accordance with law, the court has no jurisdiction to allow an extension of time asked for by the plaintiff.
3. In our opinion, the order of the learned Subordinate Judge of Madhipura which is challenged in this case is a correct order and is not vitiated by any error of law or error of jurisdiction. Accordingly we dismiss this application.
There will be no order as to costs.