G RANGARAJU CHETTIAR Vs. MEENAKSHI AMMAL

JUDGEMENT

(1.) The first defendant-respondent in court below is the revision petitioner herein. The respondents herein filed E, A. 1703 of 1981 and 1778 of 1981 in 0. S 841 of 1964, under Sections 148 and 151, Civil P. C. to condone the delay in depositing the sums as per condition mentioned in the final decree dated 9-71980, which is the outcome of a compromise arrived at between the parties. Under Clause (6) of the decree, defendants 2 to 9 were to pay the amounts mentioned in Cls. (2) to (5) to the respondent first defendant and the plaintiff, within six months from the date of the final decree. As per Clause (7), first defendant was to deliver possession of the portion of Item I in his possession, through his tenant, to defendants 2 to 9, by attainment at the time of payment of Rs. 20,000 as stated in paras 2, 3 and 5 therein. The last date for payment was 9-1-1981. On 2-2-1981, the revision petitioner sent a notice drawing the attention of respondents about the non-payment of the amount stipulated under the final decree, and 0 spite of at, a sum of Rs. 20,000 was deposited on 27-7-1981, and the other amount of Rs. 8384 was deposited. on 22-9-1981. It is to excuse the delay in depositing the said sums, on petitions filed, and court below having allowed it in this revision petition, it is contended that executing court cannot go behind the decree, and when tile cast has come to a close, it had no jurisdiction to condone the delay, and that in a cast -wherein a decree was passed under a compromise, court had no jurisdiction to extend time by invoking S. 148, Civil P. C.

(2.) Mr. R. Krishnamurthi, learned counsel for the revision petitioner, pleads that the court has no jurisdiction to extend the time in a case wherein a decree had been passed, under compromift, and that a court cannot rewrite a contract, relying upon the following decisions. In Dr. Ram Kumar v. Mahadeo Lal., AIR 1%2 Raj 54, it was held that to invoke Section 148, Civil P. C., court must have a case before it in regard to which it had jurisdiction, and when decree prescribes a period, executing court cannot alter or vary it. In Narayanan v. Govindan, AIR 1952 Trav. Co. 440. it was held by a Division Bench that executing court has no jurisdiction to extend the time as fixed in the decree, because it will be altering or modifying the terms of the decree and the general power conferred by Section 148 is not intended to cover such cases. When time is the essence of the condition imposed by the decree, and the conditional clause in favor of the plaintiff having automatically come into effect at the of 111c stipulated period, and Such a provision having not Venal in nature, defendant cannot be relieved of Vic forfeiture resulting the time limit prescribed under the decree.

(3.) The Supreme Court in V. Ramaswami Aiyengar v. Kailash Thevar, held, that the duty of an executing court is to give effect to the terms of the decree and has no power to go beyond its terms. Even though it has power to interpret the decree, it cannot make a new decree 'for the parties under the guise of interpretation. In Topanmal v. M/s. Kundamal Gangaram, AIR 1980 SC 388, it is stated that a court executing a decree cannot go behind the decree and it must take the. Decree as it stands, for it is bondage and continue between the parties to the suit. He would then refer to Hukumchand v. Bansilal, which proceeded to hold that, where there was a. statutory compulsion, to, confirm the sale an the, demand of the application under Order 21, Rule 90, Civil P. C. any further postponement of the confirmation of sale could only be by consent of'-parties, and that executing court has no jurisdiction to grant time. Relying on these decisions he pleads that the following propositions emerge, they being that the executing court cannot go behind the decree and it cannot rewrite a term agreed to between the parties and when the case has come to a close. the court has no jurisdiction to extend the time, as has been done by the court below, unless parties express their consent. When a notice had bow, sent on 2-2-1981 reminding about the need to comply with the conditions agreed to and there being no prompt compliance it only goes to show that wantonly and knowingly, Clause (0) of the decree had been contravened, and having committed such breach of term, executing court had no jurisdiction to extend the period, as if it was a decree passed by court.