Punjab-Haryana High Court
Jai Singh vs Puran Singh And Anr. on 25 May, 1990
Equivalent citations: (1990)98PLR569
JUDGMENT A.L. Bahri, J.
1. This revision is directed against order August 12, 1988, passed by the Additional Senior Sub-Judge, Fazilka. in execution of decree dismissing objections filed by the judgment debtors.
2. Puran Singh filed a suit for specific performance of the contract of sale dated December 7, 1981, executed by Jai Singh in his favour to sell 37 Kanals 12 Marlas of land for Rs. 40,000/-. The said suit was decreed on November 7, 1984 by the trial Court. Two months time was allowed for deposit of the sale Consideration in the decree. An appeal was filed by Jai Singh which was dismissed on September 9, 1986. During pendency of the appeal an order was obtained staying dispossession. However, at the time of dismissal of the appeal no time was allowed to the plaintiff to deposit the remaining sale consideration. An application under Section 148 read with Section 151 of the Code of Civil Procedure was filed before the Additional District Judge who vide his order dated October 15, 1986 permitted the decree holder plaintiff to deposit the remaining sale consideration within one month. This was done on November 6, 1986 and thereafter the decree holder moved execution application.
3. Jai Singh, decree-holder, raised objections to the execution of the decree that though he was ready and willing to perform his part of the contract, however, the decree-holder did not deposit the amount as ordered by the trial court Some objections were filed by Darshan Singh and others who had purchased part of the suit land on December 12, 1986. Different issues were framed on the objections filed. Ultimately the same was dismissed by the Additional Senior Sub-Judge, Fazilka, on August 12, 1988.
4. It has been urged on behalf of the petitioners that after disposal of the appeal in the suit the Court had no jurisdiction to entertain an application under Section 148 of the Code of Civil Procedure and to pass at, order thereon allowing further time for deposit of the sale to consideration. The said order being without jurisdiction is to be ignored and the plaintiff must suffer the consequence as the plaintiff did not insist for the grant of time when the appellate Court decided the appeal. In support of this contention reliance has been placed on a decision of Supreme Court in Mahanth Ram Dass v. Ganga Das, A. I. R 1961 S. C. 882. The ratio of the decision in this case is not at all applicable to the case in hand It was held that the High Court was not powerless to enlarge the time even though it had pre-emptorily fixed the period for payment. Section 148, in terms, allowed extension of time, even if the original period fixed had expired, hence Section 149 was equally liberal. In that case order was passed for payment of deficit court-fees and application was moved before the time fixed had run out for extension. The other decision relied upon by the counsel for the petitioner is Smt. Periyakkal and Ors. v. Smt. Dakshyant, A. I. R. 1983 S. C. 428. In that case the parties had entered into a compromise and invited/ the Court to make an order in accordance therewith. The Court passed the order for deposit as contemplated by the parties. The Court could extend the time in appropriate cases. It was observed as under :--
"Of course, time would not be extended ordinarily, nor for mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not re-write a contract between the parties but the Court would relieve against a forfeiture clauses; And, where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed."
Again ratio of the decision referred to above does not help the petitioner. The counsel for the petitioner further relies upon a decision of this Court in Smt. Parmeshri v. Nauratia, (1984) 86 P. L. R. 591. The aforesaid two decisions of the Supreme Court were discussed. In this case an additional decree for possession on payment of certain amount in instalment within a specified period was passed The party failed to pay the amount on the specified dates and it was held that the Court was not competent to extend time for payment under Section 148 of the Code of Civil Procedure irrespective of the nature of cause. It was observed that provisions of Section 148 applied to procedural orders and not to conditional decrees. On perusal of a case it is noticed that a consent order was passed which was sought to be modified on application under Section 148 of the Code of Civil Procedure. Ratio of the decision again is not helpful in deciding the case in his favour.
5. There are judicial decisions directly covering the subject. Dattatraya v. Shaikh Mahaboob Shaikh Ali, A. I. R. 1970 S. C. 750, was a case where a decree for possession by pre-emption was passed. The amount of consideration was to be paid within six months from the date of the decree. In default the suit was to be dismissed. The defendant had preferred an appeal which was dismissed. The plaintiff had deposited the amount within the time granted by the trial Court. However, it was withdrawn by him under orders of the Court. The District Court had directed him to deposit the amount before a particular date. A second appeal was taken to the High Court wherein order staying execution of the decree was passed It was in these circumstances that the decree-holder committed default in deposit of the amount. However, the same was deposited subsequently. The appeal was dismissed by the High Court and the matter cropped up in the execution. The Supreme Court held that the effect of the order of the High Court dismissing the appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court's decree. Amar Nath Jain v. Ram Parkash Dhir, (1987-1) 91 P. L. R. 490, was a case dealing with the provisions of Section 28 of the Specific Relief Act. The suit for specific performance was decreed and time was allowed to deposit the balance amount within one month. Appeal was taken against the said decree which was dismissed by the Additional District Judge. During the pendency of the appeal the Court had granted stay of the execution of the decree. In view of the order passed in the appeal the amount deposited in accordance with the order of the trial Court was withdrawn. However, while dismissing the appeal no time was mentioned within which the amount was to be deposited. The decree-holder of his own deposited the sale consideration and applied for execution. It may be noticed that the judgment debtor had not moved any application under Section 28 of the Specific Relief Act by then. It was held that it should be presumed that the time was extended for depositing the amount. It was further held that no one should be allowed to suffer for the act of the Court. In Gurdit Singh v. Jagjit Singh, (1987-1) 91 P. L. R. 129, it was held that it is only appellate Court's decree which is to be executed whether the same is for reversal or affirmance. The trial Court had not fixed the time within which the decree-holder was to deposit the purchase money. It was held that the appellate Court could fix the time. In Thakar Singh and Ors. v. Inder Singh, (1989-1) 95 P.L.R. 40, the suit filed by the plaintiff for specific performance was decreed. Time was allowed for payment of the balance of the sale money. When the appellate Court decided the matter, the appellate Court extended the time. It was held that the appeal was in continuation of the suit and the appellate court could extend the time.
6. Taking into consideration the ratio of the decisions referred to above, it would be noticed that even if no order was passed regarding deposit of balance of sale consideration while disposing of the appeal, time could be allowed even by the executing Court or impliedly it should be deemed to have been extended by dismissal of the appeal of the defendants and affirming the trial Court decree In the present case before the defendant took any steps to rescind the contract of the plaintiff decree-holder had approached the appellate court with application under Section 148 of the Code of Civil Procedure for grant of time for depositing the balance sale consideration and after obtaining the order within the time allowed he deposited the amount. The appellate Court had the jurisdiction to extend the time under Section 148 of the Code of Civil Procedure. That being the position there was no force in the objection filed by Jai Singh to the execution of the decree.
7. For the reasons recorded above finding no merit in the revision petition, the same is dismissed with costs.