Civil Revision Application No.13 of 2008

7th February, 2012

Petitioner Counsel: Shri SAURABH A. CHAUDHARI SHRI ANAND PARCHURER.A.GUPTE R.A.GUPTE

Cases Cited:
Naguba Appa Vs. Namdev, AIR 1954 SC 50 [Para 8]
Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and others, 1970(1) SCC 670 [Para 8]
Sulleh Singh and others Vs. Sohan Lal and another, (1975) 2 SCC 505 [Para 8]
Ramankutty Guptan Vs. Avara, AIR 1994 SC 1699 [Para 9,11]
Sardar Mohar Singh, through Power of Attorney Holder, Manjit Singh Vs. Mangilal alias Mangtya, (1997) 9 SCC 217 [Para 9]
Alimuddin Vs. Waizuddin, 1998 (9) SCC 108 [Para 9]
Sangli Bank Ltd., Goa Vs. Timblo Pvt. Ltd. and others, 2000(2) Mh.L.J. 21 [Para 9]
Smt. Vatsala Shankar Bansole Vs. Shri Sambhaji Nanasaheb Khandare and another, 2002(4) ALL MR 374=AIR 2003 Bom.57 [Para 9]
Hari Vs. Mahadu Kerba Tekale (D) by Lrs., 2006(5) ALL MR 480 =2006 (5) AIR Bom.R 515 [Para 9]
Maruti Vishnu Kshirsagar Vs. Bapu Keshav Jadhav, AIR 1970 Bom.398 [Para 11]

JUDGMENT

JUDGMENT :- This civil revision application challenges the order dated 3-12-2007 passed by the learned Civil Judge, Senior Division, Bhandara, rejecting the objection Exhibit 17 filed by the applicants in Special Darkhast No.21 of 2005 to the executability of the decree for specific performance of contract passed on 17-3-2004 in Special Civil Suit No.50 of 2001.

2. The facts of the case are as under :

The applicants were the defendants in Special Civil Suit No.50 of 2001 filed by the non-applicant/plaintiff for specific performance of contract. The said suit was decreed and specific performance was granted by the judgment and order dated 17-3-2004 passed by the learned Joint Civil Judge, Senior Division, Bhandara. The operative part of the order passing the decree, is reproduced below :

"1.The suit is hereby decreed.

2.The defendant is directed to execute the sale deed of the suit property i.e. plot admeasuring 91.6 sq. mtrs., City Survey No.2936, Sheet No.25 at Taluka Pauni, Distt. Bhandara and house situated thereon in plaintiffs name in the plaintiff paying balance consideration of Rs.1,08,595/- within 2 months from the date of this order and deliver possession of the same to plaintiff.

3.If the defendant fails to execute the sale deed the plaintiff shall be at liberty to deposit the balance consideration in the Court and get the sale-deed executed through the court.

4.Defendant to bear costs of plaintiff.

5.If the plaintiff fails to tender balance consideration to the defendant within 2 months from the date of this order the suit shall stand dismissed.

6. Decree is drawn up accordingly."

In view of above, the non-applicant/plaintiff was required to pay the balance amount of consideration of Rs.1,08,595/- within a period of two months with effect from 17-3-2004. The period of two months expired on 17-5-2004. However, the amount was not deposited.

3. The applicants/defendants preferred the First Appeal, which was dismissed on 14-7-2005, and also the Second Appeal, which was dismissed on 14-3-2006. During the pendency of the First Appeal or the Second Appeal, there was no stay either to the judgment and decree passed by the Trial Court or to the execution of the decree.

4. On 14-9-2005, the non-applicant/plaintiff, who was the decree-holder, filed an application for grant of permission to deposit the balance amount of consideration of Rs.1,08,595/- in the Court in Special Darkhast No.21 of 2005. The said application was before the Court of Civil Judge, Senior Division, Bhandara, who passed an order on 14-9-2005, itself as under :

" Without any prejudice to the right of J.D. regarding his right of rescission u/s 28 of Specific Relief Act, or any other right of him, D.H. is only permitted to deposit such amount in the Court."

Accordingly, the non-applicant/plaintiff deposited the balance amount of consideration on 14-9-2005 itself.

5. On 22-6-2006, the applicants/defendants (judgment-debtor) filed an objection to the execution of the decree on the ground that in spite of specific condition for deposit of the amount in the Court within two months from the date of the order, the amount was not deposited within the stipulated period and the decree itself provided the consequences of dismissal of the suit for failure to deposit the amount and hence the suit stood dismissed and the decree has become unexecutable. This was opposed by the non-applicant/plaintiff by filing his reply. The stand was taken in the reply by the non-applicant/plaintiff (decree-holder) that up to 17-5-2004, there were vacations and hence there was no reason to deposit the amount, when the Court was closed. It is the further stand taken that Civil Appeal No.51 of 2004 was filed on 12-4-2004 and the same was dismissed on 14-7-2005. Thereafter, Second Appeal No.569 of 2005 and the application for stay of execution of the decree were moved. The record was sent to this Court and the matter was decided on 14-3-2006. Hence, a plea was not final and it merged in the subsequent decision of the Appellate Court. It was stated that a separate application for extension of time and condonation of delay to deposit is also being filed.

6. The learned Civil Judge, Senior Division, Bhandara, passed an order on 3-12-2007 rejecting the objection Exhibit 17 in Special Darkhast No.21 of 2005. It has been held that the direction to pay the amount within the stipulated period is merely an incidental direction and the Court does not become functus officio once the decree for specific performance is passed. It has further been held that the appeal being continuation of the suit, there is a power to extend the time for depositing the purchase-money on sufficient grounds. The Court, therefore, rejected the objection.

7. Shri Sourabh Chaudhari, the learned counsel appearing for the applicants/defendants, has urged that the application for extension of time to deposit the amount was not moved in the Suit decided, but it was moved in the Special Darkhast filed before the Executing Court, which, according to him, was not competent to pass an order extending the time to deposit the amount, as it would amount to going behind the decree passed by the Trial Court. It is his further submission that the decree itself provides the consequences of dismissal of the suit for failure to pay the amount within the stipulated time and the extension of time would, therefore, amount the amendment of the decree.

8. Shri Sourabh Chaudhari has relied upon the judgment of the Apex Court in Naguba Appa v. Namdev, reported in AIR 1954 SC 50, for the proposition that unless the decree is altered in any manner by the Court in appeal, the party is bound to comply with the direction with regard to deposit of the amount, and if such direction is not complied with, the Suit will stand dismissed. He has further relied upon the judgment of the Apex Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, reported in 1970(1) SCC 670, for the proposition that the Executing Court cannot go behind the decree and it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. In the next judgment of the Apex Court relied upon by him in Sulleh Singh and others v. Sohan Lal and another, reported in (1975) 2 SCC 505, it has been held that the directions given by the Trial Court under Order XX, Rule 14 of the Civil Procedure Code are mandatory in nature and failure to deposit the amount in terms of the Trial Court's decree would result in dismissal of the suit, for the reason of default in not depositing the amount of purchase-money.

9. Shri Rushikesh Gupte, the learned counsel appearing for the non-applicant/plaintiff, has, on the other hand, urged that under Section 148 of the Civil Procedure Code, the Court has power to enlarge the time specified in a decree. He has further urged that though the decree is passed in a Suit for specific performance of contract, it is treated as a preliminary decree and the Court passing a decree still retains its control over the proceedings and it continues to exercise the power to pass the order till the decree is fully executed. He submits that there is no application under Section 28 of the Specific Relief Act, 1963 filed for rescission of contract. The Court has granted permission to deposit the amount by an order dated 14-9-2005, which has not been challenged or attained the finality. He further submits that the non-applicant/plaintiff (decree-holder) has made out a case for enlargement of time giving sufficient reasons, which has been accepted by the Court while rejecting the objection to the executability of the decree. He has relied upon the following judgments of this Court as well as the Apex Court :

(1)AIR 1994 SC 1699 - Ramankutty Guptan v. Avara

(2)1996 (11) SCC 228 - Yeshoda v. K. Nagarajan.

(3)(1997) 9 SCC 217 - Sardar Mohar Singh, through Power of Attorney Holder, Manjit Singh v. Mangilal alias Mangtya.

(4)1998 (9) SCC 108 - Alimuddin v. Waizuddin.

(5)2000(2) Mh.L.J. 21 - Sangli Bank Ltd., Goa v. Timblo Pvt. Ltd. and others.

(6)AIR 2003 Bombay 57 : [2002(4) ALL MR 374] - Smt. Vatsala Shankar Bansole v. Shri Sambhaji Nanasaheb Khandare and another.

(7)2006 (5) AIR Bom R 515 : [2006(5) ALL MR 480] - Hari v. Mahadu Kerba Tekale (D) by Lrs.

10. The judgments relied upon by Shri Sourabh Chaudhari for the applicants/defendants, are rendered in the suit claiming right of pre-emption and the same are on the construction of the provisions of Order XX, Rule 14 of the Civil Procedure Code. Order XX, Rule 14 of the Code itself provides the consequences of dismissal of the suit, if the amount of purchase-money and the costs directed to be paid by the plaintiff within the stipulated period, have not been paid. The Court has held that in such a situation, there is no question of enlargement of time, and even if there is no condition incorporated in the decree that the suit shall stand dismissed upon failure to deposit the purchase-money and the costs, still the consequences of dismissal of the suit shall follow. The principles laid down in those judgments would not be applicable to a decree for specific performance of contract, which is governed by Order 20, Rule 12-A of the Civil Procedure Code. Rule 12-A of Order XX empowers the Court to direct purchase-money or other sum to be paid by the purchaser within the stipulated period in a decree for specific performance of contract for sale. However, the said provision does not provide the consequences for failure to deposit the amount within the stipulated period, as has been provided for under Rule 14, Order XX of the Civil Procedure Code. By necessary implication, the question of extension of time is left open to the discretion of the Court. Hence, the judgments relied upon by Shri Sourabh Chaudhari for the applicants/defendants are not applicable in the facts and circumstances of the present case.

11. In the judgment of this Court in Maruti Vishnu Kshirsagar v. Bapu Keshav Jadhav, reported in AIR 1970 Bombay 398, which has been held to be a correct view by the Apex Court in its judgment in Ramankutty Guptan v. Avara, reported in AIR 1994 SC 1699, a decree for specific performance of contract was passed on 27-8-1964 and the direction was given to the decree-holder to deposit an amount of Rs.700/- within a period of three months of the decree. In Civil Appeal No.376 of 1964, the Appellate Court, by its judgment and order dated 13-8-1965, modified the decree directing deposit of the amount within a period of one month. The period of one month expired on 13-9-1965, but the amount of balance consideration was not deposited by the decree-holder. The decree-holder deposited the amount on 21-9-1965. The Executing Court on 10-3-1966 condoned the delay and accepted the deposit. In appeal, the said order was set aside, against which approach was made to this Court. It has been held in the said judgment that the fixation of time is an incidental direction and granting extension of time does not result in the amendment of the decree. It has been further held that the Court has power to grant extension of time upon sufficient reasons being shown. A specific objection was raised that the application ought to have been filed before the Trial Court, but it was filed before the Executing Court and the said application could not have been decided by the Executing Court. It has been held that the Executing Court and the Trial Court being same and the suit having not been completely disposed of, the application for condonation of delay must be held to have been considered as a separate application made to the Trial Court.

12. In view of the aforesaid view taken by this Court, the argument that the application ought to have been made to the Trial Court and the Executing Court was not competent to grant extension of time, is rejected. The contention of Shri Sourabh Chaudhari for the applicants/defendants that the application ought to have been moved in the suit decided, does not survive, as in the present case also the decree was passed by the Court of Civil Judge, Senior Division, Bhandara and the execution proceedings were also filed before the same Court, which has passed an order granting extension of time and rejecting the objection to the executability of the decree. The contention that granting of extension amounts to amendment of decree, is also rejected. The extension of time is for sufficient reasons. The direction fixing time to deposit amount being incidental in nature, the Executing Court was also competent to extend the time.

13. Much stress was laid by Shri Sourabh Chaudhari for the applicants/defendants on the fact that the decree itself provides the consequences of dismissal of the suit, which are required to follow upon failure to deposit the amount within the time stipulated by the Court. The learned counsel has further urged that it is not the application under Section 28 of the Specific Relief Act for rescission of contract filed by the applicants/defendants, on which an order of extension of time can be passed, as has been held in various judgments of the Apex Court relied upon by Shri Gupte for the non-applicant/plaintiff. The argument cannot be accepted. Once it is held that the direction to make the payment of balance consideration within the stipulated period is of incidental in nature and the fact that Order XX, Rule 12-A of the Civil Procedure Code nowhere provides the consequences of dismissal of the suit for failure to deposit the said amount within the stipulated period, and the Court has ample power to grant extension of time to deposit the amount, the condition of dismissal of suit stipulated in the decree is of no consequence. It also does not amount to going behind the decree passed by the Trial Court. The direction remains as it is, but the consequences of dismissal of the suit may occur if within the extended time the amount is not deposited. That is altogether different matter and this case is not concerned with any such eventuality.

14. The Trial Court has already granted the extension of time to deposit the amount. The amount has been deposited on 14-9-2005. While rejecting the objection, the Trial Court has applied its mind to the reasons putforth for seeking extension of time to deposit the amount. It is not a case where the provisions of the Limitation Act are applicable and the condonation of delay is required to be sought by filing an application under Section 5 of the said Act. It is a matter of extension of time to be granted upon satisfaction of the reasons putforth by the party concerned. In view of this, no fault can be found with the view taken by the Trial Court in rejecting the objection raised by the applicants/defendants.

15. In the result, the civil revision application has no substance and the same is, therefore, dismissed. No order as to costs.

16. At this stage, Shri Sourabh Chaudhari for the applicants/defendants, submits that this Court has granted stay of the further proceedings of execution on 25-2-2008 and it has been continued by a further order dated 22-7-2008 after hearing the parties. He further submits that as a result of dismissal of this civil revision application, the interim order would come to an end. He, therefore, prays that the said interim order be continued for a further period of six weeks so as to enable the applicants/defendants to adopt further appropriate remedies.

Shri Gupte for the non-applicant/plaintiff has opposed the prayer.

17. In view of the fact that the interim order of stay of further proceedings of execution is operating since 25-2-2008, the same shall continue to operate for a further period of six weeks, as prayed by the learned counsel for the applicants/defendants, and expiry of the said period, the interim order shall stand automatically vacated without reference to the Court.

Application dismissed.