M SAKUNTALA DEVI Vs. V SAKUNTALA

JUDGEMENT

(1.) The plaintiff-appellant filed O. S. No. 565 of 1972 in the Court of the Second Additional Child Judge, City Civil Court, Hyderabad for specific performance of an agreement of re-conveyance dated 5-7-1967. The plaintiff sought a decree directing defendants 1 to 3 to execute a registered sale-deed after receiving a sum of Rs. 13,000.00 from the plaintiff. On 28-3-1973 a memorandum of compromise signed by the parties and their counsel was filed and a decree was passed in terms of the compromise decree with which we are concerned was as follows:---

(2.) There appear to be three formidable obstacles in the way of the plaintiffs success in this appeal (1) the decree was one for re-conveyance of property. In all agreements for re-conveyance of property time has always been considered to be of the essence of the agreement on the ground that an option to repurchase property was in the nature of a concession or privilege subject to strict fulfilment of prescribed conditions. Vide Samarapuri Chettiar v. Sudarshanna Chariar ILR 42 Mad 802 : (AIR 1919 Mad 544) Balasundara Mudaliar v. Muthu Venkatachala AIR 1954 Mad 799 Shanmugham Pillai v. Annalakshmi Ammal AIR 1950 FC 38, ?Simrathmul v. Nanjalingaiah AIR 1963 SC 1182, Caltex India Ltd. v. Bhagavan Devi AIR 1969 Sc 405 and Managlam Pillai v. C. S. A. Udayar AIR 1976 Mad 360. Since the decree in the present case was one for re-conveyance of property, time was of the essence. the plaintiff not having deposited the amount in time the Court had not jurisdiction to extend the time and permit execution of the decree (2). The decree was based on an agreement between the parties and, therefore, the decree could not be changed except by the agreement of the parties. The Court was, therefore, incompetent to permit the deposit of the amount by the plaintiff after the expiry of the time agreed upon between the parties. Vide Mooriantakath Ammoo v. Matathankandy Vadakkayil Pokkan (1940) 2 Mad LJ 311: (AIR 1940 Mad817); Bethanna Nadar v. Srinivasan (1962) 1 mad LJ 418, Subramanya Mudaliar v. Shanmugham Chettiar AIR 1968 Madras 48 and Hukamchand v. Bansilal AIR 1968 Sc 86. (3) The application for extension of time, even if permissible should have been made to the Court which passed the decree and not to the executing court.

(3.) These objections were sought to be got over by the learned Advocate General by contending that the decree passed in the case was in the nature of a preliminary decree and that until the defendants got the suit dismissed by filing an application, the Court continued to have jurisdiction to grant time or to extend the time fixed by the terms of the original decree even if such decree was a consent decree. He argued that in granting a decree for specific performance, whether a compromise decree or a decree on contest, the Court merely declared the existence of the contract and gave time within which the contract had to be carried out. The Court always retained the jurisdiction to grant further time, if necessary. He invited out attention to Section 28 of the Specific Relief Act, 1963. He relied upon the decisions in Abdul Shaker Saheb v. Abdul Rahiman Saheb ILR 46 Mad 148: (AIR 1923 Mad 284) Manicka Gounder v. Sami Kannu Gounder AIR 1967 Mad 397.