MANICKA GOUNDER Vs. SAMIKANNU GOUNDER

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings in O. S. 297 of 1961, a suit instituted by the respondent for specific performance of an agreement to reconvey the suit property dated 13-6-1959 executed by the appellant to the respondent. The suit itself was compromised and a consent decree was passed in and by which the respondent (plaintiff) 15-11-1962 and also deposit the necessary general stamp papers into court for the appellant to reconvey the property to the respondent on such deposit of the said amount by the respondent. The respondent did not deposit the amount as mentioned in the said decree on or before 15-111962 but filed F. P. 605 of 1962 on 26-11-1962, after depositing the sum of rs. 800 any praying the court that the appellant might be directed to execute a sale deed in favour of the respondent as per the terms of the compromise decree. By abundant caution, the respondent filed M. P. 935 of 1962 in O. S. 297 of 1961 for extension of time for payment of the said sum of Rupees 800 as per the terms of the consent decree. He set up a plea that on or before 15-11-1962 he tendered the money to the judgment debtor (appellant here) and that as he refused to receive the same, he did not deposit and therefore he had come to court to execute the decree after depositing the said sum of Rs. 800 and praying the court to extend time for payment from 15-11-1962 till the date of deposit made by him in the court. The courts below disbelieved the story of the respondent but they came to the conclusion that time was not the essence of the contract in respect of the immovable properties, granted the extension of time and directed the appellant here to execute a sale deed in respect of the suit property in favour of the respondent. It is against the order of the Subordinate Judge, Cuddalore in appeal that the judgment debtor has preferred this civil miscellaneous second appeal.

(2.) IN this appeal, it is seriously contended by learned counsel for the appellant that time is the essence of the contract in the case of reconveying the suit property. In this connection he has drawn my attention to the decision of the federal court in Shanmugham Pillai v. Annalakshmi Ammal, 1949 FCR 537 = (AIR 1950 FC 38) It has been laid down at page 546 (of FCR)= (at p. 41 of AIR ).

(3.) THIS principle has been consistently followed later by the Supreme Court in simrathmal v. Nanjalingiah, and this court in Balasundar v. Muthuvenkatachala, There seems to be some force in the contention urged by learned counsel for the appellant,. But we have to consider whether the extension of time can be granted in the circumstances of the instant case. It is common ground that this is a suit for specific performance of the agreement to reconvey the suit property which originally belonged to the respondent here. There is also the compromise decree in any by which certain time was fixed for depositing the sum of Rs. 800. Unfortunately, as noted by the courts below, there is no default clause. In such a case, the court should take into consideration that the suit should be deemed to be pending but not finally disposed of. In Abdul Shaker Sahib v. Abdul Rahiman Sahib, 44 Mad LJ 107= (AIR 1923 Mad 284) the facts are similar. In that case a decree for specific performance of a contract for sale provided (a) that, upon payment by the plaintiffs of a sum named within two months from the date of the decree, the first defendant to execute and registrar a proper deed of conveyance of the properties in the schedule and (b) that upon payment the first defendant do put the plaintiffs in possession of the said properties together with all title deeds. In such a case, Sri walter Schwabe C. J. for the Bench observed at page 113: