BHUJANGRAO GANPATI Vs. SHESHRAO RAJARAM

JUDGEMENT

(1.) THIS is an application to revise an order passed by the learned District Judge, Parbhani, reversing the order of Mr. S. Y. Gambhir, Civil Judge (J. D. ). Sailu, dated the 30th of August 1969 refusing to grant extension of time under a decree for specific performance on the ground that the Court had no power to do so. It is not necessary for the purpose of this application to state the facts prior to the decree. Suffice it to say that, on the 30th March 1968, a conditional decree for specific performance was passed in favour of the present respondent which was in the following terms :-

(2.) UNDER Section 28 of the specific relief Act, 1963, at the time of passing a decree for specific performance of a contract for the sale of immovable property, the court has undoubtedly the power to direct payment by the purchased of the price or other sum by a fixed date. The said section, however, proceeds to lay down that, in such a case, if the purchaser fails to pay the amount within the time fixed by the decree for specific performance, the vendor could apply in the same suit to have the contract rescinded and, on such application, the court may order rescission of that contract and proceed to give consequential directions for the restoration of any benefits received thereunder.

(3.) IN the case of Babulal V. Jagannath cited by me earlier which was relied upon by the lower appellate court, the facts were, no doubt identical with the facts of the present case. Relying upon the language of Section 28 (1) my brother Bhole held (at P. 837) that the terms of the said section itself clearly contemplated that the court had the power to grant an extension of time. He also referred to certain other decisions in which the same view had been taken. I agree with the view taken by my brother Bhole in the said case that in a conditional decree for specific performance of the nature contemplated by Section 28 (I) of the specific Relief Act, 1963, the court would have the power to grant an extension of the time for payment fixed under that decree. In my opinion, however, the decree in the present case is not a decree under section 28 (1) of the specific Relief Act, 1963, in so far as it is a self-operative final decree which provides in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. In the case of such a decree, it is impossible to apply the provisions of Section 28 of the specific Relief Act, 1963, which , for instance, provide for a subsequent application for the recission of the contract itself, and for certain consequential orders. It is true that in Babulala's case which was decided by my brother Bhole also. the decree was in the same form as in the present case but, I am afriad , there can be no question of my being bound by authority in the matter of the proper contruction of the decree before me. In any event, there is an unreported decission of a Division Bench of this court by which I would be bound, a fortiori, in which also the decree was in precisely the same form as in the present case, in the said case were to deposit in the trial court within one month of the receipt of the papers of the appeal a certain sum, and further provided that in case the plaintiffs failed to make that deposit within the time prescribed the said suit was to stand dismissed with costs. A Division Bench of the Court consisting of S. T. Desai and Datar, JJ. , by their unreported judgment dated 19th August 1959, held in the said case (Civil Application No. 3964 of 1958) that the failure on the part of the plaintiffs to carry out the terms of the decree had automatically resulted in the disposal of the suit and the Court had become functus officio and had no power to grant and extension of the time fixed by the decree. It is true that in a subsequent case the Supreme Court has in the case of Mahanth Ram v. Ganga Das. AIR 1961 SC 882 taken the view that section 148 of the code of Civil Procedure empowers the court to deal with events that might arise subsequent to an order, for the purpose of enlarging time for payment even though it had been peremptorily fixed, but in that connection the Supreme Court observed as follows :-