PERIYAKKAL Vs. DAKSHYANI

JUDGEMENT

(1.) The respondent Dakshyani sued to recover a sum of Rs. 7,324-86 paise from Narayana Swami, husband of the first appellant and father of the rest of the appellants, The suit was decreed with costs and, in execution of the decree, certain property situated in Bangalore City was brought to sale. The decree-holder purchased the property at the execution sale held on August 19, 1969, for a sum of Rs. 28,000/-. Narayana Swami having died in the meanwhile, his legal representative, the present appellants, filed an application under the provisions of Order 21 Rule 90 for setting aside the sale on various grounds. The Executing Court dismissed the application on March 28, 1973, but on an appeal preferred by the appellants the sale was set aside on July 31, 1974. The respondent filed a second appeal to the High Court of Karnataka. At the hearing of the second appeal the parties entered into a compromise with the leave of the Court, such leave being necessary since many of the present appellants were minors then and are minors even now. The Court granted leave and made an order in terms of the compromise. The term of the compromise with which we are concerned is that the present appellants agreed to deposit and the present respondent agreed to receive a sum of Rs. 60,000/- in full and final settlement of the decree. If the deposit was made on or before November 30, 1976, the sale which though confirmed by the Trial Court but set aside by the Appellate Court was to stand set aside and the second appeal of the respondent was to stand dismissed. If the amount of Rs. 60,000/- was not deposited on or before November 30, 1976, the second appeal was to stand allowed and the sale was to stand confirmed. Time was stated to be the essence of the contract between the parties. The appellants were permitted under the compromise, to raise funds by sale, mortgage etc., of the property in question. The appellants failed to deposit the amount in terms of the compromise. It appears that they were unable to raise the necessary funds as they could not evict the tenant who was in occupation of the property. Finally the appellants filed an application purporting to be under Ss. 148 and 151 of the Civil Procedure Code to extend the time for depositing the sum of Rs. 60,000/- in terms of the compromise dated June 24, 1976. The High Court dismissed the application on the ground that the Court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them. The High Court purported to rely upon the decision of this Court in Hukumchand v. Bansilal, AIR 1968 SC 86.

(2.) Shri R. B. Datar Learned Counsel for the appellants urged that there was no limitation on the power of the court to extend time under S. 148, C. P. C., and that where a compromise had been made an order of the Court, it was certainly, open to the court to extend time under Section 148 C. P. C. He relied upon the decision of the High Courts of Bombay and Calcutta in Marketing and Advertising Associates Pvt. Ltd. v. Telerad Pvt. Ltd., AIR 1969 Bom 323 and Jadabendra Nath Mishra v. Manorama Debya, AIR 1970 Cal 199. He distinguished the decision of this Court in Hukumchand v. Bansilal, Shri Javali Learned Counsel for the respondent, on the other hand urged that time should not be extended by the court, in law and on principle, where the parties themselves had agreed upon the time within which the amount was to be deposited.

(3.) In Hukumchand v. Bansilal AIR 1968 SC 86) the real question which was considered was, if a mortgaged property was sold in execution of a mortgage decree and if the application to set aside the sale under Order 21 Rule 90 was dismissed but time was granted by consent of parties for depositing the decretal amount etc., could time be extended for depositing the decretal amount etc., to avert the confirmation of sale, under order 34 Rule 5, except with the consent of the parties. The answer was 'no'. The Court said on the dismissal of an application under Order 21 Rule 90, confirmation of sale under Order 21, Rule 92 had to follow as a matter of course. Order 34 Rule 5 merely permitted the deposit to be made at any time before the confirmation of the sale and there could be no question of extending the time for such deposit. If parties agreed to have the confirmation of sale postponed, further postponment would be possible by agreement of parties only. The Court would have no say in the matter. Section 148 C. P. C. would have no application. The position was clarified by the Court thus: