AKEEL AHMED Vs. BACHCHU

JUDGEMENT

(1.) The present revision petition has been filed under Section 115 of CPC by the petitioner-decree holder, challenging the order dated 07.08.2004 passed by the Civil Judge (S.D.) Dholpur (hereinafter referred to as "the trial court") in Civil Misc. Application No.18/2002, whereby the trial court has dismissed the application filed by the petitioner under Section 28 of Specific Relief Act (hereinafter referred to as "the said Act") read with Section 148 of CPC.

(2.) The short facts giving rise to the present petition are that the petitioner had filed the suit being No.187/1993 seeking specific performance of the agreement allegedly executed by the respondents-defendants in favour of the petitioner. The said suit was decreed exparte against the respondent No.1-defendant No.1 vide the judgment & decree dated 07.10.1993. The said decree was sought to be set-aside by the respondents by moving an application before the trial court, however the said application was dismissed vide the order dated 04.12.1996. Being aggrieved by the said order, the respondents had also filed the misc. appeal in the court of Additional District Judge, Dholpur, however the said appeal was also dismissed vide the order dated 18.08.2001. The petitioner-decree holder thereafter submitted an application under Section 28 of the said Act read with Section 148 of CPC on 04.02.2002 seeking extension of time for depositing the amount as directed in the decree. The said application has been dismissed by the trial court vide the impugned order, against which the present revision petition has been filed.

(3.) The learned counsel Mr. Deepak Sharma for the petitioner submitted that the petitioner did not pay the amount to the respondents within 6 months of the decree as the respondents had filed the application seeking setting-aside of the said decree, and the said application having been dismissed by the trial court, he had preferred the appeal, and that after the dismissal of the said appeal, the application for extension of time was made by the petitioner. According to him, no time limit was fixed in the decree for depositing of the amount in the court, if the respondent No.1 refused to accept the amount, and therefore the court should have extended the time limit, considering the facts and circumstances of the case. Learned counsel Mr. Sharma has relied upon the decision of Patna High Court in case of Tribeni Tewary and Ors. versus Ramratan Nonia and Ors., 1959 AIR(Pat) 460, and the decision of the Andhra Pradesh High Court in case of Sajja Chimpiraiah versus Gaddam Venkata Subbaiah and Ors., 2004 AIR(AP) 528, to submit that it is the discretion of the court to extend the time limit under Section 28 of the said Act. He has submitted that the trial court having not exercised the discretion judiciously, the impugned order deserves to be set-aside.