RESHAM SINGH Vs. MANMOHAN SINGH

JUDGEMENT

(1.) This order will dispose of Civil Revision No. 3271 of 1982 and 154 of 1983, as both the petitions have been filed against the same order of the Additional Senior Sub Judge, Hoshiarpur, dt. 27th Aug, 1982.

(2.) In a suit for specific performance of agreement to sell, a conditional decree was passed on 29th Oct, 1981 in favour of the plaintiff-petitioners. According to the decree, a sum of Rs. 50,500/- was to be paid within one month, failing which the plaintiffs' suit was to stand dismissed. Admittedly, no appeal was filed by either party against the said decree of the trial Court which had become final between the parties. Admittedly, the plaintiffs did not deposit the amount of the decree within the time allowed. They sought execution of the decree by filing an application dt. 15th Mar, 1982. This application was contested on behalf of the judgment-debtors on the ground that the amount had not been deposited within time and, therefore, the plaintiffs' suit stood dismissed, and the question of execution as such did not arise. Then the decree-holders filed an application dt. 7th April, 1982 under Ss.148 and 151, C.P.C., for extending time for depositing the sale price and condoning delay for depositing the same. This application was contested on behalf of the judgment-debtors. The learned Sub Judge disposed of both the applications by the impugned order, dt. 27th Aug, 1982. It came to the conclusion that "since the decree-holders failed to deposit the amount within one month of the decree, their suit stood dismissed and this Court has no jurisdiction now to extend the time." It was further held that the judgment-debtors were not obliged to move application for the rescission of the contract. Thus both the applications, that is, the execution application as well as the application for seeking the extension of time, were dismissed. Dissatisfied with the same, the decree-holders filed these petitions in this Court.

(3.) The learned counsel for the petitioners contended that under the C.P.C., there is no provision by virtue of which conditional decree could be passed in a suit for specific performance of the agreement to sell. The only provision in the Code is O.20, R.12-A which provides that where a decree for specific performance of the contract for sale or lease of immoveable property orders that the purchase money or other sum be paid by the purchaser or lessee it shall specify the period within which the payment shall be made. Thus, argued the learned counsel, no further condition could be put and in case the said amount was not deposited the suit shall not stand dismissed. According to the learned counsel, a decree in a suit for specific performance was in the nature of a preliminary decree, and in case the amount was not deposited within the time allowed, it was open to the judgment-debtors to move an application under S.28 of the Specific Relief Act for rescission of the contract for the sale. It was further contended that simply because the Court had imposed this condition in the decree, it did not debar the Court from extending the time for depositing the amount of the sale price in view of the provisions of S.148 of the C.P.C., and, therefore, the executing Court has failed to exercise its jurisdicton by not extending the time to deposit the amount of the sale price. In support of this contention, he referred to K. Saraswathi v. P.S.S. Somasundaram Chettiar, (1977) 2 Mad LJ 68, Someshwar Dayal v. Widow of Lalman Shah AIR 1958 All 488; Gokul Prasad v. Fattelal, AIR 1946 Nag 29; Tribeni Tewary v. Ramarattan Nonia, AIR 1959 Patna 460; K. Kalpana Sarswathi v. P.S.S. Somasundram Chettiar, AIR 1980 SC 512. On the other hand, the learned counsel for the respondents submitted that since the decree was a conditional one which decree could be passed, as there was no bar under the C.P.C. to pass such a decree, the plaintiffs suit stood dismissed on the expiry of the period of one month when they failed to deposit the sale price. According to the learned counsel since the decree was conditional one, the Court had no jurisdiction to extend the time because that will be amounting to varying the decree without there being any appeal against the same. In support of his contention, reference was made to Smt. Parmeshri v. Naurata, AIR 1984 Punj and Har 342; Smt. Sarupi v. Har Gian, AIR 1975 Punj and Har 231; Bokaro and Ramgur Ltd. v. State of Bihar, AIR 1965 Cal 308; Bhutnath Das v. Sahadeb Chandra Panja; (1966) 66 Cal WN. 645, and Dhanna Singh v, Malkiat Singh (1983) 85 Pun LR 275.