BABULAL VITHOBA Vs. JAGANNATH SAKHARAMJI SOMKUWAR

JUDGEMENT

(1.) THIS is an application in revision by the plaintiff who had sued the opponent -defendant claiming a decree for specific performance of a contract of sale of a land situated at mouza Metpanjara, tahsil Katol, district Nagpur. The opponent had agreed to sell the land to the applicant for Rs. 700 on April 18, 1964 and on that date the applicant had also paid an earnest money its. 200. It was further agreed between the parties that the final sale deed would be executed on April 27, 1964 after receiving the balance. This agreement to sell was also reduced to writing in an Isar Chitthi dated April 18, 1964. Because the opponent did not fulfil his promise, therefore the applicant had to file this suit claiming a decree for specific performance of the contract.

(2.) A decree was passed in favour of the plaintiff by a judgment dated June 80, 1965. The decree was drawn on July 2, 1965. Under the decree, the applicant -plaintiff had to deposit the sum of Rs. 500 as balance of consideration within three weeks from the date of the decree and thereafter the defendant was ordered to execute a registered sale deed of the suit land in applicant -plaintiff's favour within two weeks at the applicant -plaintiff's expense after deposit of the balance of consideration. It was further mentioned in the decree that if the applicant -plaintiff fails to deposit the balance of consideration as stated in the decree within the stipulated time, then his claim for specific performance shall stand dismissed with costs. Therefore the applicant -plaintiff had to pay the balance of consideration on or before July 23, 1965.

(3.) IT is true that in Gopala Aiyar v. Sannasi the learned single Judge of the Madras High Court who was hearing the case took a view that in view of the order passed in the decree, the trial Court could not have any jurisdiction to extend the time for the payment of money by the decree -holder. But it appears that the same High Court later on differed from this view. In Abdul Shaher Sahib v. Abdul Rakiman Sahib A.I.R. [1928] Mad. 284, a Division Bench of that High Court was considering similar facts. That was also a decree for specific performance. That High Court held that even where it was intended by the decree that the payment of Rs. 4,000 by the date named should be a condition, failing to comply with which, would deprive the successful plaintiff of all his rights under the decree, that decree being in the nature of a preliminary decree, the original Court can keep control over the action and have full power to make any just and necessary orders therein, including in appropriate cases the extension of the time. The Madras High Court in this case also referred to Gopala Aiyar v. Sannasi. The Division Bench did not agree with the decision in Gopala Aiyar's case. Their Lordships in this Madras case have also referred to Ramaswami Kone v. Sundara Kone I.L.R. (1907) Mad. 28 in which a similar view as that taken in Abdul Shaker Sahib v. Abdul Rakiman Sahib was taken. It appears to me, therefore, that the learned Civil Judge was in error in following the proposition laid down in Gopala Aiyar v. Sannasi, especially when the same High Court in various other cases has taken a different and a contrary view.