Patna High Court
Bisun Prasad Mishra vs Kamla Kant Jha And Ors. on 14 February, 1972
Equivalent citations: AIR1972PAT322, AIR 1972 PATNA 322
Author: N.L. Untwalia
Bench: N.L. Untwalia
ORDER N.L. Untwalia, J.
1. The necessary facts to be stated for the disposal of this civil revision application are too many and a bit complicated. I shall, however, briefly state them.
2. The petitioner filed Title Suit No. 7 of 1948 on the 10th of January, 1948, against one Mani Misrain for specific performance of contract said to have been executed by her in favour of the petitioner. The consideration money mentioned in the agreement was Rs. 325/-, out of which Rs. 100/- was paid by way of earnest money, and Rs. 225/- was to be paid later. Mani Misrain did not execute the sale deed, and, hence the suit was filed impleading the subsequent transferees as the defendants second party- The suit was decreed by the trial court on the 1st July, 1950- It directed the plaintiff to deposit the balance of Rs. 225/- within fifteen days of the date of the decree. It is not disputed that the said sum of Rs. 225/- was deposited by challan No. 358 in the name of Mani Misrain on the 7th of July, 1950, that is, well within the time granted by the decree. Finally, however, Second Appeal No. 950 of 1951 succeeded in this court on the 28th August, 1958. The judgments and decrees of the courts below were set aside. The case was remitted back to the trial court to try the issue of legal necessity after giving opportunities to the parties to amend their pleadings. The issue was tried. The suit was again decreed by the trial court on the 21st March, 1959. By this time, Mani Misrain was dead, and her heirs were substituted as defendants first party. Being ignorant of the fact that the sum of Rs. 225/- had already been deposited on the 7th of July, 1950, in pursuance of the earlier decree, the trial court again directed the plaintiff to deposit the sum of Rs. 225/- within one month of the second decree dated the 21st of March, 1959. This sum, however, was not deposited. The matter was being litigated further, and eventually the second appeal filed from the lower appellate court's judgment, which affirmed the trial court's judgment dated the 21st March, 1959, was dismissed by this court on the 16th September, 1964.
3. In the meantime, the petitioner-decree-holder had executed his decree for specific performance in Execution Case No. 88 of 1963. This execution case was levied on the 28th May, 1963. Miscellaneous Case No. 23 of 1965, which was filed by the judgment-debtors in this case on 22-2- 1965, was however; dismissed for default on the 11th September, 1965. On the 3rd January, 1966, the petitioner filed a fresh challan in the court seeking its permission to deposit the sum of Rs. 225/-afresh. At his risk, the money was allowed to be deposited on the 5th January, 1966. One fact may be noticed here that on the 15th January, 1966, the judgment-debtors filed Miscellaneous Case No. 9 of 1966 objecting to the execution of the decree on the ground that the money was not deposited in time, and, hence, the decree could not be executed. This miscellaneous case was dismissed by the executing court on the 13th December, 1966. The judgment-debtors first party who had filed Miscellaneous Case No. 9 of 1966 filed a miscellaneous appeal in the lower appellate court, but they subsequently withdrew it. The order of the execution court, therefore, holding that the decree was executable became final.
4. On the 19th March, 1966, the petitioner filed an application in the court which had passed the decree for extension of time to deposit the sum of Rs. 225/-. The said sum, as stated above, had already been deposited on the 5th January, 1966; but a formal order extending the time was made by the court on the 26th April, 1966. Shortly thereafter, the defendants first party applied in the court for recall of the order dated the 26th April, 1966, on the ground that it was made without hearing them as also on the ground that the court had no jurisdiction to extend the time. This application of theirs was rejected by the court below on the 4th June, 1966. They came up in revision to this Court which was numbered as Civil Revision No. 854 of 1966. This civil revision was dismissed in limine by U.N. Sinha, J., as he then was, on the 16th September, 1966. Thereafter, on the 11th October, 1966, the defendants first party, who are opposite party Nos. 1 to 3 in this civil revision, filed an application under Section 28 of the Specific Relief Act, 1963 (hereinafter called "the Act of 1963') for rescission of the contract on the basis of which the decree for specific performance had been made. The court below has allowed this application, and, therefore, the plaintiff has come up in revision to this Court.
5. One more fact may be mentioned here that in Execution Case No. 88 of 1963 the stand taken on behalf of the petitioner , was that the previous deposit made on the 7th July, 1950 was a good deposit; but this stand was repelled by order dated the 17th December, 1965, passed in the execution case. Later on, in the suit when the plaintiff filed an application for extension of time and after the time was extended by order dated the 26th April 1966, the court while rejecting the application of the other side for recall of that order held on the 4th June, 1966 that even the previous deposit was a good deposit and the deposit made on the 5th January, 1966, could also well be accepted by extension of time.
6. The learned Munsif in the impugned order has taken the view that the order dated the 17th December, 1965, operated as res judicata between the parties on the question whether the previous deposit could be held to be a valid deposit and that the court had no jurisdiction to extend the time as it did by its order dated the 26th April, 1966. In that view of the matter, the court below has taken the view that the plaintiff-purchaser did not pay the purchase money within the period allowed y the decree, and, hence, the contract was fit to be rescinded; and, it has been rescinded.
7. In support of the order of the court below, Mr. Lal Narayan Sinha, learned counsel for the opposite party, submitted some additional points, and, they are the following, namely, (1) that Section 28 of the Act of 1963 was not applicable to this case, but the substantive law engrafted in Section 35 of the old Specific Relief Act of 1877 (hereinafter called the Old Act, 1877') governed it; (2) that time could not be extended by the trial court as its decree had merged in the decree of this court in the second appeal when it was dismissed on the 16th September, 1964; and (3) that the trial court had no power to extend the time. Learned counsel " further submitted that in any view of the matter there is no error of jurisdiction in the order of the court below and this civil revision should be dismissed.
8. In my opinion, the order dated the 17th December, 1965, did not operate as res judicata on the question as to whether the previous deposit could inure as a deposit after the decree dated the 21st March, 1959. In the execution case, such an order was made; but, finally, as I have: said above, Miscellaneous Case No, 9 of 1966 was dismissed on the 13th December, 1966, on the ground that the decree was executable, and there was no default on the part of the decree-holder. Moreover, in the order dated the 4th June, 1966, it was held that the previous deposit also was a good deposit; and, if the order dated the 17th December, 1965, could not be pressed into service for bringing about a bar of res judicata when the order dated the 4th June, 1966 was passed, it could not be pressed into service for the same purpose later, because the second order dated the 4th June, 1966, would operate on the principles of constructive res judicata as a bar on the point of res judicata also.
9. But, I do not propose to rest my judgment merely on the ground that the first deposit was a good deposit. The second deposit was also a good one. Section 28 of the Act of 1963, permits the deposit to be made within such further period as the court may allow the time even after its expiry. The court did allow time by order dated the 26th April, 1966. The defendants first party did not come up in revision to this Court from that order. If that order was without jurisdiction, it ought to have been recalled. They asked the court below to recall it, but the court below refused to do so by its order dated the 4th June, 1966. The defendants first party came up in civil revision; but the civil revision was dismissed in limine. The effect of these proceedings is that the extension of time granted by the court below remained a valid extension and could not be challenged in this proceeding under Section 28 of the Act of 1963. The view of the court below in that regard is erroneous.
10. Coming to the additional points urged by Mr. Lal Narayan Sinha, I am of the opinion that none of them is sound. When the time for payment of money is extended, it does not mean a modification of the decree. The trial court had power to extend the time, and the expression "such further period as the court may allow" would mean the court which had passed the decree, or, where the application under Section 28 of the Act of 1963, is filed. The court had power under Section 148 of the Code of Civil Procedure to extend the time even after its expiry vide the case of Mahanth Ram; Das v. Ganga Das (AIR 1961 SC 882). In my opinion, the terms of Section 35 of the old Act, 1877, are not applicable. If that be so, the application filed in Title Suit No. 7 of 1948 would be misconceived as under Section 35 of the old Act, 1877, a separate suit is necessary. Under the new Act of 1963, a separate suit is necessary if the case is covered by Section 27 of the said Act; but an application in the same court which had passed the decree is maintainable under Section 28 of the Act of 1963. Even assuming that Section 35 of the old Act, 1877, was applicable, it is clear that the purchaser did not make any default. It is difficult to take the view on the facts and circumstances of this case that the purchaser was in default. The first decree was complied with in time, and the second decree as well was complied with within the extended time. It is to be emphasised that the power under Section 28 of the Act of 1963, or under Section 35 of the old Act, 1877, is a "discretionary one. The court on flimsy grounds could not exercise its power and annul the decree, once passed by it. A clear case of default has to be found out in order to give relief of rescission of contract so as to nullify the decree of specific performance. On the facts of this case, I am clearly' of the opinion that no such case could be made out, nor could any be found by the court below.
11. Since the order of the court below, as I have said above, is based upon two points--- res judicata and lack of jurisdiction, both of which, in my opinion, are erroneous, the order becomes an order with an error of jurisdiction vide the case of Joy Chand Lal Babu v. Kamalaksha Choudhary, AIR 1949 PC 239. By taking an erroneous view on the point of res judicata and lack of jurisdiction in extending the time, the court below has exercised the jurisdiction under Section 28 of the Act of 1963 wrongly and this is clearly an error of jurisdiction. The principle decided by the Supreme Court in Keshardeo v. Radha Kissen, AIR 1953 SC 23, on which reliance was placed by learned counsel for the opposite party, is not applicable to the facts of the instant case.
12. In the result, I allow the application in revision, set aside the order of the court below and dismiss the application filed by opposite party Nos. 1 to 3 under Section 28 of the Act of 1963. In the circumstances, I shall make no order as to costs.