Bombay High Court
Sau. Shobha W/O Vilas Thakare vs Narendra S/O Tumdeo Hulke & Others on 16 March, 2000
Equivalent citations: 2000(4)BOMCR56, 2000 A I H C 2054, 2000 BOM LR 3 285
Author: S. D. Gundewar
Bench: S. D. Gundewar
ORDER S. D. Gundewar, J.
1. This civil revision application is heard finally at the stage of admission with the consent of both the parties.
2. By the present civil revision application, the applicant has challenged the common order dated 6-11-1999 passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur in Special Darkhast No. 261/98, whereby the learned trial Judge rejected the objections raised by the applicant and respondent No. 5 in said application.
3. A few facts leading to this application are as under :---
The respondents Nos. 1 to 3/original plaintiffs had filed Special Civil Suit No. 733/88 for specific performance of agreement of sale dated 19-6-1986 against the legal representatives of the deceased Narayanrao Akolikar, i.e. applicant and non-applicants Nos. 4 to 11 in respect of Municipal House No. 959/0+3 situated in Ward No. 75, Nagpur, alleging that on 19-6-1986 the deceased Narayanrao Akolikar agreed to sell the said house to them for a consideration of Rs. 5,40,000/-. It was also alleged that the amount of Rs. 50,000/- was paid by way of an earnest money. The said suit was decreed on 30-3-1998 and the learned 5th Joint Civil Judge, Senior Division, Nagpur directed the original plaintiffs to deposit the balance amount of consideration of Rupees Three Lakhs in the Court within 30 days from 30-3-1998 and submit a draft for the purpose of sale of the suit property. The sale-deed was to be executed by the defendants within 15 days thereafter.
4. After the aforesaid decree was passed, the plaintiffs had deposited Rupees One Lakh in the Court on 30-4-1998 and Rupees Two Lakhs on 8-6-1998. Before that on 30-4-1998 itself they had filed an application under section 148 of C.P. Code for enlargement of time. After the plaintiffs had deposited the aforesaid balance amount of consideration, they had filed Special Darkhast No. 261/98 for the execution of the decree in question. In the said Special Darkhast, the applicant and the respondent No. 5 had filed their objections to the effect that the said execution proceedings were not maintainable as the entire balance amount of consideration was not paid by the plaintiffs within the time fixed by the Court. According to them, the entire balance amount of Rupees Three Lakhs was to be paid by the plaintiffs upto 30-4-1998. However, they deposited only Rupees One Lakh on 30-4-1998 and the balance amount of Rupees Two Lakhs on 8-6-1998. It was also contended by them that on 30-4-1998 itself the plaintiffs had filed an application under section 148 of Code of Civil Procedure for enlargement of time and as the said application was pending, the execution proceedings were not maintainable. It was further contended by them that soon after the decree was drawn, the Court had become functus officio and it had no jurisdiction to enlarge the time.
5. As against this, it was submitted on behalf of the decree-holders/original plaintiffs that they had deposited the entire amount of consideration in the Court. It was also submitted on behalf of the decree-holders that the amount of Rupees One Lakh was deposited on 30-4-1998 and the remaining amount of Rupees Two Lakhs was deposited on 8-6-1998 and as the Court had accepted the said payment, it indicates that the Court had enlarged the time and, therefore, the decree is executable.
6. The learned 5th Joint Civil Judge, Senior Division, Nagpur on the basis of the material placed before him and on the analysis thereof, held that as the huge amount had been deposited by the decree-holders within the stipulated time and the remaining amount was also deposited by them which was accepted by the Court, which indicates that the Court had enlarged the time and, therefore, the decree in question is executable. The learned trial Judge has accordingly rejected the objections raised by judgment debtor Nos. 3 & 5, i.e. the applicant and respondent No. 5 in this revision application. The name of the respondent No. 5 appears to have been subsequently deleted by the applicant vide order of this Court. The order dated 6-11-1999 passed by the Court below is under challenge in this Civil Revision Application.
7. Heard Shri B.P. Dharmadhikari, the learned Counsel for the applicant and Shri R.S. Parsodkar, the learned Counsel for the non-applicants Nos. 1 to 3.
8. While assailing the impugned order, Shri B.P. Dharmadhikari submitted that the Court has no jurisdiction to exercise power under section 148 of C.P. Code once a decree has been passed by it. According to him, soon after the decree is passed, the Court becomes functus officio and, therefore, the question of enlargement of time by the Court does not arise. According to him, in the present case, as the decree-holders/original plaintiffs have not deposited the remaining amount of consideration, i.e. Rupees Two Lakhs before 30-4-1998, the decree passed by the Court in their favour is not executable. For this, he placed reliance on the decisions in Sonusing Dhanusing Patil & another v. Bansi Chindu Kumbhar, reported in 1993 Mh.L.J. 1141 and in Daxa N. Gandhi & another v. Indira Maruti Varadkar & another, .
9. In Sonusing Dhanusing Patil's case (cited surpa), the learned Single Judge of this Court held as below :---
"Held, that the Court exercising powers under section 148 must have seisin over the proceedings in regard to which the Court is understood to be exercising powers under that section. When the Court accepts the terms agreed upon by the parties, the terms bear the impression of the Court and character of a decree of the Court, the executing Court gets no power to exercise powers under section 148 as the Court has no jurisdiction to touch what is in the nature of a final decree between the parties and only thing left with the Court is to proceed with the legal consequences in the execution proceedings. The Court could not have decided the decree to be an agreement and could not have resorted to exercise the powers under section 148 of Civil Procedure Code. The Court had no alternative but to pass the necessary orders which are inevitable as a consequence of non-compliance of the terms of the consent decree. Order of executing Court set aside and revision allowed ."
It was further held by the learned Single Judge of this Court in the aforesaid decision that :---
"When consent decree is passed on the basis of terms agreed upon by parties, the decree of the Court cannot be considered as an agreement or contract between the parties as the terms bear the impression of the Court and character of a decree of the Court."
10. In Daxa N. Gandhi's case (cited supra), the learned Single Judge of this Court held as below :---
"On broad principle it can be said that if the clause concerned is in the nature of a penalty or a forfeiture, the Court is always competent to give relief against it. The test is whether by allowing the decree-holder to enforce the default clause, would he get more than what he deserves? If the Court in its conscience considers that he would unjustly enrich himself by holding on to the default clause, it would interfere, be it a consent decree or otherwise. For example, in the present case, if the decree was for cancellation of the agreement on the defendants paying a certain amount within a certain time, failing which the entire property were to pass on to the plaintiffs, and if the defendants were to apply for extension of time on facts mentioned herein, the Court would not hesitate to grant such a relief. That, in essence, is the meaning of granting relief against forfeiture and penalty. But on the other hand, in the present case the decree itself is one for specific performance and under the decree, the plaintiffs are entitled to get possession of the flat, as they have paid the price for the same. However, the decree provides for a concession, namely, if the defendants pay a sum of Rs. 3,50,000/ - by a certain dale, the plaintiffs would not insist upon the decree being carried out and they would have the decree marked fully satisfied. In such a case, if the default takes place, the plaintiffs get no more than what they are entitled to get under the decree. There is no question of granting any relief against forfeiture or penalty. In such circumstance, if time has to be extended, it can only be done by consent of both the parties."
"That being the position in the present case, the fact that there was difficulty in acquiring the amount or pay the same in this Court by 1-4-1990 or that the defendants could collect the amount within a short time thereafter, would become irrelevant, inasmuch as, time cannot be extended without the consent of the other side. In such circumstances, there is no question of application of any provision either under section 148 or even under section 151."
11. On going through the facts of both the cases, I find that the ratio laid down by this Court in the aforesaid decisions is not applicable to the facts of the present case because in Sonusing Dhanusing Patil's case (cited supra), there was a consent decree passed on the basis of the terms agreed upon by the parties and, therefore, the Court held that when such consent decree is passed on the basis of the terms agreed upon by the parties, the Court could not have resorted to exercise the powers under section 148 of Civil Procedure Code and in such case, the Court had no alternative but to pass the necessary orders which are inevitable as a consequence of non-compliance of the terms of the consent decree and on that basis, the order of the executing Court was set aside; whereas in Daxa N. Gandhi's case (cited supra), under the decree for specific performance, the plaintiffs were entitled to get the possession of the flat as they had paid the price for the same. However, the decree provided that if the defendants pay a sum of Rs. 3,50,000/- by certain date, the plaintiffs would not insist upon the decree being carried out and they will mark the decree as fully satisfied and, therefore, this Court held that in such a case, if default takes place, the plaintiffs get no more than what they are entitled to get under the decree and, therefore, there was no question of granting any relief against the forfeiture or penalty.
12. However, in the case at hand, it is not so. In the case at hand, the decree passed by the learned 5th Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No. 733/98 is to the following effect :---
Suit of plaintiffs is decreed as under :
1. It is hereby ordered that plaintiffs shall deposit remaining consideration amount Rs. 3,00,000/- (Rupees Three Lakhs Only) in the Court within 30 (thirty) days from today.
2. It is further ordered that after deposit of the above amount plaintiff shall submit the draft of the proposed sale-deed of the suit property.
3. It is further ordered that all the defendants shall receive the remaining consideration amount Rs. 3,00,000/- (Rupees Three Lakhs Only) and execute the sale-deed in terms of draft of the sale-deed to be approved by the Court. Such sale-deed shall be executed by the defendants within 15 days thereafter.
4. Defendants shall also put plaintiffs in possession of the suit property described in plaint para No. 3.
5. Failure to comply with the decree by defendants, plaintiffs are at liberty to get the same executed by Court.
6. Defendants jointly and severally do pay the cost of the plaintiffs and shall bear their own.
7. Decree be drawn accordingly."
13. On the other hand, Shri Parsodkar, the learned Counsel for the respondents Nos. 1 to 3, contended that under section 148 of Civil Procedure Code the Court has power to enlarge time. According to him, the decree-holders/original plaintiffs deposited the amount of Rupees One Lakh on 30-4-1998 and the balance amount of Rupees Two Lakhs on 8-6-1998 and as the amount of Rupees Two Lakhs deposited by the decree-holders/original plaintiffs on 8-6-1998 was accepted by the Court, it can be inferred that the Court had enlarged time by condoning the delay. According to him, even after passing the decree for specific performance of agreement of sale of immovable property and before the execution of the said decree, Court can grant extension of time to the plaintiff to pay the amount or to perform conditions mentioned in the decree. For this, he placed reliance on the decisions in Yeshoda and another v. K. Nagarajan, , in Md. Alimuddin v. Waizuddin and another, , in Sardar Mohar Singh through Power of Attorney Holder Manjit Singh v. Mangilal alias Mangtya, and in Raghunandan Sahay and others v. Ram Sunder Prasad, reported in A.I.R. 1925 Patna 299.
14. In Yeshoda v. K. Nagarajan (cited supra), the Apex Court held in paragraph No. 2 as below :---
"2. It is contended by Mr. Mahale, learned Counsel for the petitioners, that after the expiry of the time prescribed by the Court, the petitioner has a right to seek rescission of the decree for specific performance for non-compliance. The Court, therefore, has no power to enlarge the time. We find no force in the contention. Section 148 C.P.C. gives power to the Court to enlarge the time for complying with the orders of the Court from time to time. Under those circumstances, the Court has correctly exercised the discretion since the amount came to be deposited within three months from the date of dismissal of the application under section 28."
15. In Md. Alimuddin v. Waizuddin's case (cited supra), the Supreme Court held in paragraph 2 as below :---
"2. It is true that, as pointed out by Shri Sinha, the learned Counsel for the petitioner that the trial Court while extending the time mentioned that it is at the risk of the plaintiff but having exercised the discretion and allowed the respondents to deposit the balance consideration of Rs. 500/- it amounts to that the Court has extended the time. The respondents have complied with the original direction contained in the decree of July 7, 1982. The Courts below, therefore, have rightly exercised the discretion in extending the time for compliance. We do not find any illegality in the exercise of the power. The S.L.P. is accordingly dismissed."
16. In Sardar Mohar Singh's case (cited supra), the Apex Court held as below:-
"It is clear from section 28(1) that the Court does not lose its jurisdiction after the grant of the decree for specific performance nor it becomes functus officio. The very fact that section 28 itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal with the decree of specific performance. The Court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-debtor and rejected. The Court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. Although the respondent has not given satisfactory explanation of every day's delay, but it is not, unlike section 5 of the Limitation Act, an application for condonation of delay. It is one for extension of time. Under these circumstances, the executing Court as well as the High Court had exercised discretion and extended the time to comply with the conditional decree. Accordingly, there is no valid and justifiable reason to interfere with the order passed by the High Court confirming the order of the executing Court when in particular, the High Court has further enhanced a sum of Rs. 16,000/- to compensate the petitioner for loss of enjoyment of the money. The said amount is given to the respondent in a sum of Rs. 16,000/- rightly for the reason that parties contracted for non-performance of the contract. They quantified the damages at Rs. 2000 for 8 years. The Court has given Rs. 16,000 obviously in terms of the contract."
17. In Raghunandan Sahay's case (cited supra) the Division Bench of the Patna High Court held as below :---
"Where a Court accepts deficit Court-fee after the time fixed for its payment and the plaint is registered, it may be inferred that the Court condones the delay and grants extension, as it has discretion to do under section 148 or section 149 of the Civil Procedure Code for, if it wanted, the Court might have rejected the plaint under Order 7, Rule 11."
18. The ratio laid down by the Apex Court in the aforesaid decisions, i.e. and clearly indicates that till the sale-deed is executed in execution of decree, the trial Court retains its power and jurisdiction to deal with the decree of specific performance.
19. In the case at hand, though the respondents Nos. 1 to 3/original plaintiffs have defaulted in payment of balance consideration within the time fixed by the Court, the Court while exercising jurisdiction allowed the respondents Nos. 1 to 3 to deposit the balance consideration of Rupees Two Lakhs. It amounts to that the Court had extended time and, therefore, in my view, the respondents Nos. 1 to 3 have complied with the directions contained in the decree dated 30-3-1998.
20. Shri B.P. Dharmadhikari, the learned Counsel for the applicant, has pointed out that the application filed by the respondents Nos. 1 to 3/original plaintiffs under section 148 of Civil Procedure Code for the enlargement of time is still pending and the Court has yet to decide the same. On the other hand, Shri Parsodkar, the learned Counsel for the respondents Nos. 1 to 3, submitted that as the executing Court while passing the impugned order held that by allowing the respondents Nos. 1 to 3 to deposit the balance consideration of Rupees Two Lakhs after 30-4-1998 the Court has extended the time, the respondents Nos. 1 to 3 do not want to press the application filed by them under section 148 of C.P.C. for enlargement of time and, therefore, according to Shri Parsodkar, the said fact now does not come in the way of respondents Nos. 1 to 3 in executing the decree in question.
21. It is pertinent to note that though the respondents Nos. 1 to 3 have defaulted in payment of balance consideration within the time fixed by the Court, the applicant has not taken any steps under section 28(1) of the Specific Relief Act for rescission of contract though she has raised objection in this regard before the Executing Court and, therefore, in my view, in the light of the facts and circumstances of the case, the Executing Court has rightly observed that as the Court has allowed the respondents Nos. 1 to 3 to deposit the balance consideration of Rupees Two Lakhs on 8-6-1998, it has extended time and, therefore, the decree for specific performance is executable, particularly when there is no stipulation in the decree in question that in case respondents Nos. 1 to 3, i.e. original plaintiffs fail to deposit the amount of balance consideration within the fixed time, their claim for specific performance was liable to be dismissed.
22. In the result, I see no reason to interfere with the impugned order passed by the Court below. The civil revision application is accordingly dismissed. No order as to costs.
23. At this juncture, Shri B.P. Dharmadhikari, the learned Counsel for the applicant, states that the interim order passed by this Court may be continued for a period of eight weeks. This request made by the learned Counsel for the applicant cannot be accepted. However, in the facts and circumstances of the case, the interim order passed by this Court to continue for two weeks from today.
Civil revision application dismissed.