MURTI PARASNATHJI THROUGH SARBARAKAR SINGHAI MOTILAL AND ANOTHER Vs. GULABCHAND S/O. MITHULAL JAIN AND OTHERS

JUDGEMENT

(1.) THIS is a miscellaneous second appeal by the judgment-debtor in a suit for specific performance which was successful. The plaintiffs sought to have property re-conveyed to them and an order was made, the decree being in the following terms:

(2.) IN point of fact, the plaintiffs found themselves unable to pay within the period because the banker from whom they were going to get the money closed his shop because on the day in question his grandson died. The plaintiffs were a few days late in paying. Both the lower Courts have held that it is a case for excusing the delay. The application that we are considering is an application made to the trial Court (not in execution) for extension of time to deposit the money. There is no doubt about the bona fides, the money was produced within a few days of the time fixed in the decree, and the reason for the delay has, as above indicated, been held by the two lower Courts to have existed in fact and to constitute reasonable excuse for the delay. But it is said for the appellant before us that the Court had no power to extend the time it had no power because when a decree has been passed in a suit for specific performance the Court is functus officio and the decree, unlike in England, must be worked out by another Court, that is to say, the Court charged with the business of executing the decree. That argument has not appealed to either of the lower Courts both of whom have delivered careful judgments and before whom all the relevant cases appear to have been cited and considered. They have followed the group of cases of which perhaps Abdul Shaker v. Abdul Rahiman A.I.R. 1923 Mad. 284 is the most important case. The most important case on the other side is I.L.R. (1939) Mahammad Asraf Ali v. Nabijan Bibi.

(3.) THAT means this, that once the plaintiffs in this present case were out of time in producing the purchase money the opponents could have moved the Court to rescind the decree, and the Court, in considering that motion, would rescind if it thought that the facts were such as to justify the taking away from the plaintiffs the relief that they got, because of their default. On the facts here present, of course, the Court would have done no such thing. Indeed normally on such a motion the Court would not, for any default, there and then dismiss the suit, in other words, rescind the decree, but would give further time. That is the universal practice in England and it appears to us to be fair and just. That would result in this, that the motion to rescind would take some weeks, the Court would give at least a day in which to pay, and the net result would be that the defaulting plaintiffs would get very much more time than they were in arrear in this case.