TRIBENI TEWARY Vs. RAMRATAN NONIA

JUDGEMENT

(1.) This appeal is by the decree-holders. The main point involved in this case is whether the time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree.

(2.) The facts giving rise to this appeal are as follows : -- There was a suit instituted by the decree-holder for the specific performance of a contract of sale of some agricultural lands. At the trial the suit was dismissed, but in appeal the judgment given by the trial court was reversed and the appellate Court came to the view that the suit should stand decreed. This was on the 31st January; 1955. The exact operative portion of the order passed in appeal was in these words : --

(3.) Mr. Tarkeshwar Nath appearing for the appellants has contended that the two Courts below have failed to realise that in this case the decree passed for specific performance of the contract was one in the nature of a preliminary decree, and that being so, the Court had full jurisdiction to extend or alter the time as fixed in the judgment by the appellate Court. In support of this contention reliance has been placed by the learned Advocate on the decisions in Abdul Shaker Sahib v. Abdul Rahiman Sahib, ILR 46 Mad 148 : (AIR 1923 Mad 284), Mt. Rama Bhatlu v. Mt. Annayya Bhatlu, AIR 1926 Mad 144, Abdur Rahim Molla v. Tamijaddin Molla, AIR 1933 Cal 580, Gokul Prasad v. Fattelal AIR 1946 Nag 29 and Ko Ba Chit v. Ko Than Daing, AIR 1927 Rang 311. On this point the leading judgment given in our country seems to be the one which is reported in ILR 46 Mad 148 : (AIR 1923 Mad 284). This decision was given by a division, bench of the Madras High Court. The leading judgment in that case is by the learned Chief Justice Sir Walter Salis Sohwabe. The other learned Judge Wallace, J. agreed with him, but on a ground slightly different. The view taken by the learned Chief Justice was that the decree passed in such a case is mostly in the nature of a preliminary decree. Therefore, it is open to the Court under Section 148 of the Code of Civil Procedure to alter or extend the time fixed therein for the payment of the purchase money. In support of this view the learned Chief Justice has taken into consideration the practice prevailing in the Chancery Courts in England as also the implication that arises from Section 35 (c) of the Specific" Relief Act, 1877. Accordingly, he held :