NATUBHAI SHIVABHAI CHAVDA Vs. DHIRAJLAL MADHAVDAS BHARTI

JUDGEMENT

(1.) The judgment and order dated 9/08/1990 of the learned Joint Civil Judge (J.D.), Anand, in Execution Application (Darkhast) No. 58 of 1981 is under challenge in this revision under Sec. 115 of the Code of Civil Procedure.

(2.) Shortly stated the facts are : By registered sale-deed dated 23/05/1951 the deceased father of the respondent sold suit land (Survey No. 202 admeasuring about 4 Acres 16 Gunthas out of 18 Acres 25 Gunthas situated in village Vadol Taluka Anand) for the consideration of Rs. 7,000.00 in favour of the deceased father of the petitioners. There was a contemporaneous agreement to reconvey the suit land for the enforcement of which Civil Suit No. 281 of 1965 came to be filed by the respondent's predecessor in title against the petitioners' predecessor in title. It appears that there were proceedings under Sec. 85(A) of the Bombay Tenancy and Agricultural Lands Act, 1948 during the pendency of this suit and there is a chequered history with regard to such proceedings and further developments concerning such proceedings. However, they are not relevant in so far as the present petition is concerned. It would be sufficient to state that on 9/11/1978 the parties to Civil Suit No. 281 of 1965 entered into compromise, by which the respondent was required to pay Rs. 7,000.00 to the petitioners on or before 7/07/1979 and the petitioners were required to execute a registered sale-deed and to hand over the possession of the suit land to the respondent. On the basis of such a compromise, Civil Court passed decree in the said Suit No. 281 of 1965. The present respondent filed Execution Application No. 51 of 1978 for the execution of the said decree. It is the petitioners' say that during the pendency of the said Darkhast proceedings the petitioners raised plea of tenancy on the basis of fresh agreement arrived at before the Mamlatdar on 1/07/1978. As stated above, that part of proceedings has also no relevance so far as the present revision application is concerned. It would therefore not be necessary to refer to them. As stated above. the respondent filed the present Execution Application being Darkhast No. 58 of 1981 for executing the decree in question. The petitioners appeared in that Execution Application and contested the application. The matter was heard on evidence and the learned Joint Civil Judge (J. D.), Anand passed the impugned order allowing the execution by directing the petitioners to withdraw the amount of Rs. 7,000/ - deposited by the respondent in the Court and execute a sale-deed in terms of the decree Exh. 75 within a period of 10 days from the date of the order of the learned Civil Judge and convey the property accordingly free of encumbrances. It is this order of the trial Court which has been challenged by the petitioners in this revision application.

(3.) The short question which has been raised on behalf of the petitioners is that when time was fixed in the decree itself for making payment of Rs. 7,000.00 and when that part of the decree was not complied with by the decree holder, the decree stood exhausted and ceased to be executable, with the result that the trial Court did not have jurisdiction to execute the decree. In support of this question, the learned Advocate for the petitioners relied upon various authorities, which are being presently dealt with. However, it has to be borne in mind that Sec. 148 of the Code of Civil Procedure empowers the Court to extend period earlier fixed or granted by the Court even though the period originally fixed or granted might have expired. It is not in dispute that in the present case during the tendency of the execution application, an appropriate application was moved by the respondent for making payment in the Court, of the amount of Rs. 7,000.00 in terms of the decree under execution. This can be seen from the application Exh. 47 dated 19/02/1986 and the order passed below it. It can further be seen from the application Exh. 50 dated 21/03/1988 that the respondent deposited Rs. 7,000.00 as per the order passed by the Court, and there is nothing on the record to show that that order has been carried higher up or that that order has been reversed or varied. As a matter of fact, after that order was passed the proceeding of the Darkhast had further been taken up and the matter was heard on evidence bearing in mind the provisions contained in Sec. 47 of the Code of Civil Procedure.