Jammu & Kashmir High Court
Bindru vs Kikru And Ors. on 15 May, 1987
Equivalent citations: AIR1988J&K1, AIR 1988 JAMMU AND KASHMIR 1
Author: A.S. Anand
Bench: A.S. Anand
JUDGMENT Bhat, J.
1. The following two questions, which, in the opinion of a learned single Judge of this court are important questions of law, have been referred to Full Bench for consideration :
(1) Whether the court has power to extend time, where the order provides that a thing shall be done within a particular time and in the event of default the suit, application-appeal, shall stand dismissed, even when the application for extension is filed after the time fixed by the court has expired ?
(2) In particular, whether the court has power to extend time, where in a suit for preemption, the trial court while decreeing the suit has directed that the plaintiff should deposit the price within a certain time and in default the suit shall stand dismissed, even when the application for extension is filed after the time fixed for depositing the price has expired?
2. The aforesaid two questions have arisen in a revision petition which was filed by the petitioner against the order of learned Chief Judicial Magistrate (Sub-Judge) Jummu whereby the application of the petitioner under Section 148, C.P.C. was dismissed. The petitioner seems to have filed a suit to enforce right of prior purchase in which he had obtained a decree on the basis of right of prior purchase and the decree had directed him to deposit the consideration amount within the specified time and on his failure to do so, he prayed for extension of time after the period for deposit had expired. The court below refused to extend the time. Against that order a revision was preferred and out of the revision, the above two questions have been formulated for consideration.
3. The learned single Judge has noticed some conflict between two authorities of this court, i. e. Krishan Dutt v. Mohinder Nath, AIR 1975 J & K 18 and Hakim Akbar Ali v. Haji Abdul Wahab, AIR 1977 J & K 36. In Krishan Dutt's case Division Bench has held that time cannot be extended where the petitioner applies for extension of time after the expiry of time originally fixed by the court. In Hakim Akbar Ali's case a learned single Judge of this court has taken a contrary view and has held that court has power to extend time which was originally fixed even after the expiry of that time.
4. For the proper appreciation of the contrary, which is aimed to be resolved by this Bench, it is necessary to trace out the power of the court which decrees a claim of a litigant on the basis of right of prior purchase and which directs the pre-emptor to pay the price of the property in respect of which his right of prior purchase is enforced by the court.
5. The fixation of time in the judgment and decree for payment of purchase price by the pre-emptor is not in the discretion of the court, but is regulated by Order 20, Rule 14 C.P.C.
which enjoins upon the Court to pass a conditional decree. Order 20, Rule 14(1) (a) (b) C.P.C. as applicable to this case reads as under : --
"Where the court decrees a claim to right of prior purchase in respect of a particular sale of property and the purchase money has not been paid into court, the decree shall: --
(a) specify a day on or before which the purchase money shall be so paid, and
(b) direct that on payment into court of such purchase money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs."
6. From the aforesaid provision of C.P.C., it would be clear that where a claim on the basis of right of prior purchase is decreed in respect of a particular sale of property and the purchase money has not been paid into the court, the court has to make the following directions, however, if purchase money is paid in court, the directions may not be made :
(i) It has to specify the date on or before which date pre-emptor has to be directed to pay the purchase money;
(ii) On payment of the purchase money together with the costs, if any, decreed against the plaintiff, the decree has to contain a direction that the vendee shall deliver the possession of the property to the pre-emptor whose title thereto will be deemed to have accrued from the date payment is made by him;
(iii) If the purchase money and the costs as directed by the court are not paid by the pre-emptor, the suit shall be dismissed with costs.
7. On the basis of Order 20, Rule 14C.P.C.,the decree which is to be passed in a suit of prior purchase has necessarily to contain the aforesaid conditions. These conditions are not required to be laid down by the Right of Prior Purchase Act but these are requirements of C.P.C. which prescribes as to how a decree in such a suit is to be framed. So the aforesaid conditions are to become conditions of the decree as and when a suit based on right of prior purchase is decreed.
8. After the decree is passed, the lis before the court passing is concluded and, if the time for deposit has expired, can the trial court extend the time for deposit by invoking provisions of Section 148, C.P.C. is the proposition covered by second question above, which we shall take up first in this judgment.
9. We have heard learned counsel for the parties at length and considered the few authorities which were cited at the bar.
10. Hakim Akbar Ali's case (AIR 1977 J&K 36) (Supra) to which reference is made by the learned single Judge was a case in which written statement was allowed to be amended on payment of Rs. 150/- as costs. However the order of payment of costs was made conditional. The costs were to be deposited or paid within one month from the date of making of the order, and if costs were not paid within one month application for amendment was deemed to have been dismissed.
11. Costs were not paid within one month. The defendant appears to have made an application after the expiry of period for deposit of costs in the High Court which had passed this conditional order in an earlier revision petition allowing the defendant to amend the written statement. Payment of costs was not made condition of the order by virtue of any statutory rules, but the court in its discretion had made a peremptory order for the payment of costs. The High Court extended the time by ten days after discussing the facts and circumstances of that case and after invoking its power under Section 148, CP.C read with Section 151, C.P.C The learned single Judge relied on a judgment of the Supreme court reported in AIR 1961 SC 882 (Mahanth Ram Dass v. Ganga Dass) and some other authorities, invoked his power under Section 148, C.P.C.
12. The Supreme Court in AIR 1961 SC 882 (supra) has held that in case of peremptory order for payment of deficit court fee within time fixed, court can extend time under Sections 148, 149 and 151, C.P.C It, however, made a distinction between peremptory orders passed in the discretion of the court and orders which are incorporated in conditional decrees. While holding that High Court was not powerless to enlarge time, even though it had peremptorily fixed the period for payment under Section 148, C.P.C. allowed extension of time. However, it sounded a note of caution in these words:
"Procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a court from taking note of events and circumstances which happen within the time fixed."
13. From the reading of this authority, it appears that Supreme Court did not intend to extend time for making payment if the conditional decree had directed making of the payment in a particular manner. It made exception in case of (other) conditional decrees.
14. In AIR 1972 All 246 (Gobardhan Singh v. Barsati) Full Bench of the Allahabad High Court, on which learned single Judge of this court in AIR 1977 J & K 36 has relied, has held that Section 148 empowers a court to extend time even after the expiry of the period originally fixed irrespective of whether the application for extension is made before or after the expiry of that period. It held that if sufficient cause is made out to extend the time, even when the application for extension is made after the expiry of the time fixed, court can extend time as it has the jurisdiction to do so under Section 148 CPC. In this case time was allowed for payment of the deficient amount of court-fee by a particular date failing which plaint was treated to be rejected. Application for grant of extension was made and sufficient cause was shown for not paying the court-fee in time. The Allahabad High Court relying on AIR 1961 SC 882 extended the time by exercising its powers under Section 148, C.P.C.
15. In AIR 1975 J & K 18, a Division Bench of this court held where the petitioner did not file certified copies of judgment and decree and rendered no explanation for his inaction and also made an application for extension of time after expiry of the time allowed by the court, time cannot be extended because on passing the final order proceedings had come to an end and the court had become functus officio. The petitioner in this case was directed to pay the balance court-fee as also to file a copy of judgment and decree within time allowed to him by the High Court. The petitioner had not complied with the part of the direction which related to the filing of the copy of the judgment and decree. The court had in its peremptory order directed that if within two weeks copy of thejudgment and decree were not filed, the petition would stand rejected without further reference to the Bench. The petitioner thereafter moved , an application for review of the order and sought extension of time for doing the needful. The High Court refused to extend the time because it found that there was no sufficient cause shown for enlarging the time and there was no lis pending before it. The review petitions were held not to be maintainable as there was no error apparent on the face of the record which was required to be corrected The learned referring judge has referred to this authority and he has found conflict between this authority and the authority reported in AIR 1977 J & K 36 (supra).
16. Reference was made by Mr. Sharma to Joghdhayan v. Babu Ram, reported in AIR 1983 SC 57. While considering the provisions of Section 148, C.P.C. and Order 20, Rule 14(1) (b), C.P.C., the Supreme Court held that where a decree holder in a pre-emption suit had deposited the entire amount of purchase money together with the costs decreed against him less only by 25 paisa within the time fixed by the court and 25 paisa were also deposited but beyond time, the deposit so made was substantial compliance with the requirements of Order 20 Rule 14(1) (b) and court should have accepted 25 paisa deposited late by virtue of the powers vested in it under Section 148, C.P.C. The High Court had held that non-deposit of 25 p. could not be due to any bona fide mistake which finding was reversed by the Supreme Court. The appeal had arisen out of an order of an executing court which had held deposit to be bad because it wasshort by 25 p. The Supreme Court was of the view that the appellate executing court should have extended the time under Section 148 and accepted late deposit of 25 P. as valid deposit under the decree because the entire amount, other than 25 p. deposited was valid.
17. The authorities referred to above except AIR 1983 SC 57 do not pertain to the question of deposit which is to be made in a suit for pre-emption by the pre-emptor under the terms of the decree which is framed in accordance with Order 20, Rule 14, C.P.C.
18. AIR 1983 SC 57 (supra) is also not a case of non-deposit of purchase money. It was in fact a case in which depositof purchase money was made and there was deficiency of 25 p. which also was deposited and the executing court had held it to be not valid because it was deposited after the time for deposit of purchase money had expired. It was not a case where no purchase money at all was deposited. Deficiency of 25 p. in a huge amount of deposit would not have completely non-suited the decree holder and defeated his remedy after having been successful in a prolonged litigation. Deposit of 25 P. only made late and accepted by the court could be accepted by the appellate court because the appeal was pending before it. Appeal being a continuation of the lis was under the consideration of the appellate court. Therefore, it had the power to exercise its jurisdiction under Section 148, C.P.C. for treating 25 P. to have been deposited and extend the time for its late deposit. It was not a case where the lis had concluded. If the appeal was already decided by the executing appellate court, then the question would arise as to whether it could condone the delay in depositing 25 P. after the expiry of time. Any way that will be an hypothetical question in this case. We are concerned with the concrete question of law, as to whether deposit can be ordered by a court which has no lis before it, in respect of the decree. The Supreme Court was not dealing with this aspect of the case. Therefore, this authority may not be of any help to Mr. Sharma.
19. Mr. C. M. Gupta appearing for the respondents has drawn our attention to a few authorities which specifically deal with the question involved in this petition. We shall now advert to the said authorities.
20. Naguba Appa v. Namdev, AIR 1954 SC 50, is an authority where the Supreme Court was considering the question of extension of time under Order 20, Rule 14. It held that mere filing of appeal would not suspend the decree for pre-emption and unless the appellate court alters the decree in any manner, the appellant is bound to comply with the directions with regard to the deposit of the amount within the time fixed by it. It also considered the effect of non-deposit within time allowed. The dismissal of the suit on default in paying the purchase money within time allowed was held to be a direct result of the mandatory provisions of Order 20 Rule 14, and not a result of decision of the Court. Even if this direction for dismissal of the suit for non-deposit of the purchase money within the specified time was not incorporated in the decree, the effect was same because non-deposit of purchase money within time specified would entail in dismissal of the suit under the mandatory provisions of CPC.
21. In Mir Mohammad v. Nain Singh, AIR 1970 J&K 33, provisions of Order 20, Rule 14 and the Section 148, C.P.C. was considered by Division Bench of this court. It was held that if the direction as regards deposit of purchase money was not complied with and the condition in the decree ordained that the suit to stand dismissed in default was a natural corollary of non-deposit within time. Court would become functus officio after the decree is passed and has no jurisdiction thereafter to extend the time. However, the 1st appellate court's order dismissing the appeal for non-deposit was held to be bad because along with the appeal, the appellant had presented an application for extension of time for depositing the purchase money determined by the trial court. Determination of purchase money was made a specific ground of appeal. Therefore the appellate court had first to consider the application of the appellant as to whether time can be extended and what would be the effect of the plea raised by the appellant in his memo of appeal about the sale price having been fixed by the trial court incorrectly. The appellate court was seized of the matter. Therefore it had the power to consider the application of the appellant to grant extension in depositing the sale price. That direction was required to be made because the appellant had challenged the fixation of the sale price and that was made ground of appeal. Without considering that, the appeal could not be dismissed, but as regards the court passing the decree, it was held that after the decree is passed it would become functus officio because no lis survives before the trial court.
22. We have also noticed in 4 J&K LR 275 (Abdul Latif v. Qasim) that a learned single Judge of this court had held that provisions of Order 20, Rule 14 were mandatory. Effect of non-deposit of purchase money within time would entail into dismissal of a suit even if the decree would not mention the effect of non-deposit of purchase money in express terms. Masud Hasan J, has expressed this in the following words : --
"The sine qua non in a decree for preemption is the payment within the prescribed period which is mentioned therein. The direction that the suit shall stand dismissed is implicit in the nature of things because the provisions require that the suit shall be dismissed if the monies are not paid within the prescribed period."
23. Then we have to draw a distinction between the total non-deposit within time fixed and its effect on the suit and the partial deposit. According to the provisions of Order 20, Rule 14 suit shall be dismissed if the purchase money is not paid within the time fixed by the decree. The condition of the decree about the dismissal of the suit for non-deposit of purchase money is in these words : 'Suit shall be dismissed'. This would not mean that after the failure of the pre-emptor to deposit the money as conditioned by the decree, the suit is again to be brought before the court for non-compliance with the command of Order20, Rule 14. Nor is the court required to do anything after the deposit is made validly within the time fixed. It has not to pass a fresh order for decreeing the suit. Therefore there is no difference between 'the suit shall be dismissed' and 'the suit shall stand dismissed'. Both these expressions mean that the effect of non-compliance with the order is to dismiss the suit unless the preemption price is paid within the specified time. Second order of dismissal of suit is not required to be passed for non-deposit of the purchase price. We are fortified in this view by Keshav Yashwant Koli v. Krishna Balaji Mahar, AIR 1939 Nag 107. However, where a direction is made for deposit of purchase money and the pre-emptor is awarded the costs of the litigation, deposit by the plaintiffs after deducting his own cost from the purchase money would amount to full deposit in terms of the decree. This view was taken by a Division Bench of this court in Bodh Raj v. Amar Nath reported in 3 J&K LR 15. So partial deposit after deducting permissible deductions which are ordered by the decree can be held to be valid deposit under Order 20, Rule 14 and will not be bad in terms of Order 20, Rule 14 C.P.C. But the deductions made by the pre-emptor must be ordered by the decree in favour of the pre-emptor. If without condition in decree, any deduction is made that may amount to non-deposit and will not be treated as deposit under law.
24. In Dattatraya v. Sheikh Mahboob Shaikh Ali, reported in AIR 1970 SC 750, the Supreme court held that a decree framed under Order 20, Rule 14 requires reciprocal rights and obligations between the parties. The rule says that on deposit of purchase money by the pre-emptor in the court the defendant should deliver possession of the property to the plaintiff. The obligation is interlinked. Non-deposit of the purchase money would relieve the defendant of his obligation to deliver the possession of the property to the decree-holder. However, when order of deposit contained in the decree is stayed by the High Court and thereafter the High Court dismisses the appeal, by necessary implication a fresh starting point for depositing the amount would run from the date of High Court's decree. The stay granted by the appellate court would stay operation in respect of the deposit of the amount of purchase money.
25. Sullen Singh v. Sohan Lal, AIR 1975 SC 1957 would make it clear that directions given by the trial court in the decree as regards deposit of purchase money are mandatory. Mere filing of appeal would not suspend the decree of the trial court, unless it is altered or amended in any manner by the court of appeal. Where the 1st appellate court did not grant any stay to the plaintiff about the deposit of purchase money and the plaintiff failed to deposit the preemption price within the stipulated time as directed by the High court, the Supreme Court held that the suit could be dismissed.
26. The mandate contained in Order 20, Rule 14 has certain implications for pre-emptor as also for the vendee. Pre-emptor's deposit of purchase money in the court as conditioned by the decree would cast an obligation on the vendee to deliver the possession of the property to the pre-emptor. If the pre-emptor fails to discharge his part of the obligation it would relieve the vendee to deliver the possession to the pre-emptor. The deposit of purchase money is not in the discretion of the court, but is condition to be incorporated in the decree that may be passed in a suit for pre-emption. As regards deposit of purchase (Money) conditioned by the decree, it is to be seen whether the trial court has the power to exercise its jurisdiction under Section 148, C.P.C. by extending the time for deposit.
27. Section 148, C.P.C. would come into play only when a lis is pending before the court. Section 148, C.P.C. reads as under :
"where any period is fixed or granted by the court for the doing of an 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."
28. From the examination of this provision it would be clear that court in its discretion can enlarge the period from time to time which was originally fixed by it even after its expiry. The expression 'time to time' used in this provision would denote that it is in the pending lis that the court is empowered to extend time from time to time. After the termination of the lis time cannot be enlarged from time to time. Therefore the expression 'from time to time' are the key words in the section which must reflect the true sense and import of this section. Section 148 C.P.C. comes into play only when there is a litigation pending. Lis will be deemed to be pending before the court of original suit or the appeal as the case may be. Appeal being continuation of lis would empower the appellate court to grant time in appeal also for doing a thing under Section 148, C.P.C. even if such time had expired, Without there being any lis it is not countenanced that Section 148 would be invoked by a litigant in a court where the lis is terminated. After the passing of the decree as required by Order 20, Rule 14 C.P.C. the court becomes functus officio and lis before it terminates. It has therefore nothing before it in which it can enlarge the period from time to time which had expired. Therefore Section 148 would not empower a court which has passed a decree to extend the time for making the deposit of the purchase money, the period of deposit whereof as originally fixed had expired. Such a power cannot be denied to the appellate court in case appeal is filed before it against the decree. The appellate Court may suspend the operation of the decree or enlarge the time for making the deposit of purchase money depending on the facts and circumstances of each case which may be brought before the appellate court. After the appeal is decided by the appellate court, it also loses jurisdiction to exercise its powers in enlarging the time for making the deposit under Section 148 C.P.C. because after the disposal of the appeal it is not seized of any lis in which it can extend time under Section 148 C.P.C.
29. The powers of the court under Section 148 C.P.C. are to be correlated with the pending lis and not with the lis which is terminated and in respect whereof the court has become functus officio and where making of the deposit is condition of the decree under the mandatory provisions of law and not made by the court under its discretionary powers. From a bare perusal of Section 148 it is clear that in respect of suits based on right of prior purchase which are decreed by the court, it cannot pass an order under Section 148, C.P.C. about enlarging the period which was originally fixed or which may have expired, Court after passing the decree becomes functus officio, therefore, it cannot enlarge the time for making a deposit of purchase money (and) thereby amend the condition of the decree so far as the period of deposit is fixed by the court.
30. Our answer to the second question, therefore, is that Court passing the decree in a suit for pre-emption has no power to enlarge the time for making the deposit of purchase money because after passing of the decree no lis is pending before it and period for depositing of the money is a condition of the decree and court loses control over the matter soon after it decides the matter and passes a decree. Thereafter it becomes functus officio and has no authority under Section 148, C.P.C. to vary the condition of the decree as regards the period of deposit or any matter. The decree in a suit for prior purchase is to be passed in accordance with Order 20, Rule 14. Therefore the command in that provision is to be made a condition in the decree which cannot be enlarged after the suit is decreed by the trial court.
31. So far as the first question is concerned, it pertains to powers of the court generally in suits, applications, appeals for enlarging the time under Section 148, C.P.C. Power is (sic) that case, in pending case or in a pending appeal may be exercised by the court provided the litigant invoking the powers of the court under that section makes out a case in his favour for getting the benefit of the section. So every case would depend on its own facts and no hard and fast rules can be laid down about the powers of the court which are to be exercised by it only after assuming at the satisfaction that there is sufficient cause for enlarging the period originally fixed by the court. Exercise of power, under Section 148, C.P.C. by the court before whom lis is pending is therefore dependent on so many considerations which are to be taken into consideration by the court, for instance consideration of bona fides, acting diligently by the litigant or having been prevented by sufficient cause from doing an act which he was required to do, so on and so forth, Powers given to the court under this section are not however of general application and cannot be exercised at all times. The powers under Section 148, C.P.C. cannot be exercised in suits which are terminated before the court and where the time is fixed for doing a certain thing as a condition in the decree.
32. Therefore, it is not necessary for us to spell out in which case court can exercise powers under Section 148, C.P.C. for doing a thing. Even if the court has passed a peremptory order in its discretion for doing a certain thing within a specified tune and in the event of its default, a litigant on satisfying the court that he was prevented from doing that thing by sufficient cause and did not act negligently, the court may in its discretion enlarge the time. Therefore question 1 in the reference has a different import and is not related to question 2 which we have already answered.
33. The two authorities reported in AIR 1977 J&K 36 and AIR 1975 J&K 18 (supra) have no application to the proposition which is subject matter of question 2 of the reference. In AIR 1975 J&K 18, the Division Bench on facts found that there was no sufficient cause which would persuade them to exercise power under Section 148, C.P.C. Moreover the two review petitions which were held to be incompetent on the ground that they did not disclose any material which would warrant review, court refused to exercise power under Section 148, C.P.C. It was of the opinion that even on merits no sufficient cause for enlarging the time for production of certified copy of the judgment and decree was shown to them. Therefore it was absence of sufficient cause and review applications being untenable that the court was persuaded to pass the order which it passed, in the facts and circumstances of that case. Similarly in AIR 1977 J&K 36, the learned single Judge of this court had passed the peremptory order not under any statute and that order was not a condition of a decree but was sanctioned by the discretion of the court. On an application being moved before it for enlarging the time for payment of costs, it was convinced that there was sufficient cause for enlarging the time and with the aid of Section 151 C.P.C. it granted the extension of time. Sufficient cause was shown by the petitioner in that case in an affidavit which had remained unrebutted. Therefore we have not noticed any conflict in these two authorities and they deal with two different fact situations. Both these authorities are not applicable to a lis which is based on the right of prior purchase. The correct view seems to have been expressed in AIR 1970 J&K 33 by a Division Bench of this court and by a single bench of this court in III & IV J&K LR 275.
34. The reference is answered accordingly. Let the revision petition be placed before any available single bench for disposal on merits.
Anand, C.J.
Shah, J.
35. I have gone through the judgment prepared by my learned brother Bhat, J. and I agree with his judgment and answers proposed by him to the questions of law referred for decision to the Full Bench, I would, however, like to add a few words of my own.
36.-37. The first question that has been referred, in my opinion, refers to the powers of the court to extend time in such cases where an earlier order of the court provides that an act or a thing shall be done within a particular time and in the event of default the suit, application, appeal etc. shall stand dismissed, even then the application for extension of time is filed after the time fixed by the court has expired. The powers of the court to which reference has been made in the first question, therefore, have to be spelt out either from Section 148, C.P.C. or from Section 151 C.P.C. Section 148 C.P.C reads as follows :--
"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."
Powers under this section, on the plain reading of the section, can be exercised by the court only during the pendency of the lis before the court. The use of the expression "from time to time enlarge such period" occurring therein reflects the intention of the legislature that the powers to enlarge the time can be exercised by the courts only in relation to a pending lis. The power under Section 148, C.P.C. can indeed be also exercised by the appellate or the revisional court, as the case may be, on proper cause being shown, because in that event the lis, though concluded in so far as the trial is concerned, would be still pending either in the original court or in the appellate or the revisional court. Provisions of Section 148 C.P.C. cannot be invoked because the courts after the conclusion of the lis would be functus officio.
38. However, powers under Section 151 C.P.C. can be exercised in such cases where the provisions of Section 148 C.P.C. are not attracted. Those would, for example be the cases where the time is fixed by the court, not under any statute, but with a view to avoid dilatory tactics of a litigant. Therefore, in cases where the court, during the pending proceedings, passes a peremtory order, it would not completely estop the court from taking note of such events and circumstances which happened within the time fixed by the court and prevented by the party from complying with the directions of the couit within the specified time. In such cases, as held by their Lordships of the Supreme Court in AIR 1961 SC 882, the court is not powerless to enlarge the time with a view to do complete justice to the parties provided the party seeking intension of time is able to show sufficient cause for grant of such extension after the original period has expired. AIR 1977 J&K 36, was a case dealing with such a situation and extension was granted after the period fixed by the peremptory order with the aid of Section 151 C.P.C. The peremtory order in that case, facts whereof have been given by brother Bhat, J., was not passed under any statute, but under the general powers of the court. The court was satisfied about the cause for delay in complying with its order and extended the period to comply with its earlier order. In so far as AIR 1975 J&K 18 is concerned, the Division Bench found, on facts, that no sufficient cause had been made out to enlarge the time particularly when on merits it found that the review petitions were incompetent as they did not disclose any error apparent on the face of the record. Both these judgments, therefore, dealt with different factual situations and, in my opinion, there is no conflict in the two judgments, as rightly pointed out by brother Bhat J. The answer to j the first question, therefore, has to be in the affirmative though the exercise of the power by the court would depend upon whether the party seeking the enlargement of time has satisfied the court of the existence of a sufficient cause for extending the time and each case will depend upon its own peculiar facts and circumstances.
39. In so far as the second question is concerned, it has reference to the powers of the court to extend time in a suit for preemption where the trial court while decreeing the suit had directed that the plaintiff should deposit the price within a certain time and in default the suit shall stand dismissed and an application for extension of time for depositing the price is made after the time fixed for depositing the same has already expired. The answer to the question revolves around the provisions of Order XX, Rule 14 and Section 148 C.P.C. Under Order XX, Rule 14, the court passing a decree in a suit for pre-emption has to direct payment of the purchase money and costs by the successful pre-emptor and period has also to be prescribed for the payment of the time (sic) A peremptory directions to the effect that if the purchase money and the costs, if any, are not paid within the prescribed time, suit shall be dismissed with costs is also required to be made, but even if such a direction is not there the same would be implicit because the provisions of Order XX, Rule 14 C.P.C, require that the suit shall be dismissed, if the monies are not paid within the prescribed period The question, however, arises whether the court can extend the time for deposit of the purchase money after the period prescribed has expired.
40. After the trial court passes a decree in terms of Order XX, Rule 14 C.P.C. then after the time fixed in the decree, the court becomes functus officio. Section 148 C.P.C. would, therefore, have no application to such a case, because no lis would be pending before the court of original jurisdiction, and the court cannot extend the time after it has become functus officio. However, if the appellate court is seized of the original suit (an appeal being a continuation of the suit), it would be within the powers of the appellate court to extend the time in appeal for doing a thing under Section 148, C.P.C. even though in the original court the time had expired. The second question, in fact, stands amply answered and concluded by a Division Bench of this court in Mir Mohammed v. Nain Singh, AIR 1970 J&K 33 which, in my opinion, lays down correct law on the subject. This judgment, which was binding on the learned single Judge who made the reference, it appears, escaped his notice and that accounted for the reference. The answer to the second question, therefore, has to be that the court passing a decree in a suit for pre-emption has no power to enlarge time for deposit of the purchase money because after the period fixed in the decree, the court would become functus officio as no lis would be pending before it. Section 148 C.P.C., therefore, cannot be pressed into aid for making the deposit of the purchase money, the period of deposit originally fixed having expired and the decree having attained finality.
41. The cases shall now be listed before a learned single Judge for their disposal on merits.
Shah, J.
42. I agree.