KUPPURAJAMMAL Vs. MEENAKSHI AMNMAL

JUDGEMENT

(1.) The plaintiff in 0. S. No. 341 of 1964, Sub Court, Coimbatore is the petitioner in this civil revision petition, which is directed against the order of the, Court below passed in E. A. No. 1703 of 1981 in 1. A. 685 of 1980 in 1. A. 136 of 1978 in 0. S. 341 of 1964, allowing the application filed by the respondent herein under Ss. 148 and 151, C. P. Code, praying that the delay in depositing the sum of Rs. 8,384 for payment to the petitioner be excused and time for such payment be enlarged. On 28-81969, the petitioner obtained a preliminary decree for partition and separate possession of her one-tenth share in the suit properties. The respondents herein filed 1. A. 685 of 1980 in 0. S. 341 of 1964 praying for the appointment of a Commissioner fog the division of Item I of the suit properties. into ten equal shares by metes and bounds and for suggesting the manner of allotment and to pass a final decree thereafter. While that application was pending, a joint petition was filed by the respondents herein and the first defendant in 0. S. 341 of 1964 praying that by consent of parties, a final decree may be passed. Pursuant to this, on 9-7-1980, a compromise final decree was passed and Clauses I to 6 thereunder were as follows:

(2.) By an order dated 4-1-1983, the 11 Additional Subordinate Judge, Coimbatore, dealt with not only the application filed by the respondents herein against the petitioner in E. A. No. 1703 of 1981, but also a similar application in E. A. No. 1775 of 1981 filed by the respondents herein against the first defendant in 0. S. 341 of 1964. The learned Subordinate Judge, found after referring to the exchange of notices dated 2-2-1981 and 9-3-1981, that the reasons mentioned in the reply notice or in the affidavits filed in support of the applications for the non-payment of the amounts in time were not very material, but that the substance of the matter was that the amounts could not be paid in time owing to the reasons beyond the control of the respondents. Dealing with the question of the jurisdiction of the Court to enlarge the time, the learned Subordinate Judge proceeded to consider the terms of the final decree and found that Clause I of the final decree vested the property in the respondents and in the absence of any clause providing for divestment of title to Item 1, no inconvenience could be caused to the respondents on account of the delayed payment especially in the absence of anything to indicate that the time fixed under Clause 6 of the final decree was an essential part of the compromise. The filing of the applications for enlarging the time after the expiry of the time fixed under Cl. 6 of the final decree was also taken note of by the Court below and it was held that an extension by exercising the inherent powers of Court could delay in depositing the amount could be condoned. In that view, the applications were allowed. Challenging the correctness of the order in E. A. 1703 of 1981, the petitioner has preferred this civil revision petition.

(3.) The learned counsel for the petitioner submitted that even assuming that the compromise final decree in O. S. 341 of 1964 dated 9-7-1980, is binding on the petitioner, the time stipulated under Clause 6 of the final decree was of the essence of the agreement between the parties and in the absence of consent on the part of the petitioner for any further enlargement Of time, the Court below had no jurisdiction either to excuse the delay or even to extend the time as has been done. Strong reliance in this connection was placed by the learned counsel for the petitioner upon the decisions in Subramania v. Shanmugham, , Hukumchand v. Bansilal, and P. K. Sukumaran v. Sulaiman, The learned counsel for the petitioner further pointed out that the delay in the payment of the amounts under Clause 6 of the final decree cannot be condoned and an enlargement granted for the asking by the respondents as the affidavit by the respondents before the below for that purpose did not disclose or make out good and acceptable reasons for the delay and also for the enlargement of time. On the other hand. the learned counsel for the respondents would submit that under Clause I of the final decree dated 9-7-1980 in 0. S. 341 of 1964, Item I of the suit properties stood allotted in its entirety to the respondents herein-and under Clauses 4 and 5 thereof, the petitioner had been granted a decree for a sum of Rs. 8,384, and Clause 6 granting six months' time to the respondents to pay that amount really be in the, nature of a bar to the realisation by the petitioner of those amounts or postponement of the payment of the amounts payable under Clauses 4 and 5 of the final decree. It was, therefore, contended that, the direction regarding the payment of the amounts by the respondents to the petitioner within six months is not in any manner linked up with title to Item I of the suit properties and therefore, the Court was quite justified in enlarging the period of stay, as it were, under Clause 6 till 22-81981, when the deposit was made. In reply to this, the learned counsel for the petitioners would contend that all the clauses of the final decree have to be read together and if so read, the allotment of Item I of the suit properties exclusively to the respondents cannot be divorced from the payment of the amounts due to the petitioner under Clause 4 in lieu of her one-tenth share and the very circumstance that the respondents have applied, for In extension of time suggested that the payment is linked up with the respondents securing rights to that share of the, petitioner.