ABDUL SHAKER SAHIB Vs. ABDUL RAHIMAN SAHIB

JUDGEMENT

(1.) The respondents, plaintiffs, obtained a decree for specific performance of a contract for the sale of certain lands and superstructures thereon to them by the first defendant. Coutts Trotter J. gave judgment in the following words: "I must therefore find for the plaintiffs and give them decree for specific performance on payment of Rs. 4,000. Time for payment two months." In pursuance of this judgment a decree was passed providing (1) that, upon payment by the plaintiffs on or before the 19 day of December 1921 of a sum of Rupees Four Thousand only, the first defendant do execute and register a proper deed of conveyance of the properties in the schedule (2) that upon payment the first defendant do put the plaintiffs in possession of the properties together with all documents and title-deeds. Before the expiry of the two months that is before December 19th, the first defendant had given notice of appeal. Before the expiry of the two months but after the notice of appeal, the plaintiffs had issued an application before the Judge in charge of the Original side for extention of the time for paying the money and this application was heard in January 1922, that is, after the expiration of the two months and was ordered to stand over until the hearing of this appeal. The appeal coming on, a preliminary point is taken, namely, that the two months having now elapsed neither the Original Court nor this Court has any power to extend the time and that therefore the plaintiffs have lost irrevocably all their rights under the decree except the costs, and that it is therefore useless to occupy the time of this Court in considering the merits of the case. I do not think that this is strictly a preliminary point, because the question of the costs of the suit would still remain. If the decree was right, the plaintiffs would be entitled to costs from the first defendant and if wrong the plaintiff would be liable for costs. But the point has been fully argued on both sides and raises important points on which we shall express our opinion.

(2.) The decree as drawn up, I am told, is the ordinary form of decree in use here in cases of specific performance. It may be that it is a convenient form in certain cases, though I have been unable to discover its history and how it came to be adopted. No form for a decree for specific performance is provided by statute or rule here, and it has been left to the courts to devise a suitable and appropriate form. Specific performance is an equitable remedy which has been known and used by the Courts of Chancery in England for centuries and appropriate forms of judgment have been approved by learned Equity Judges in England and have now become almost stereotyped: and those at present in use will be found set out in Seton on Judgments under the title Specific Performance. On a perusal of them the first thing to be observed is that not one of those forms contained in the first instance limit of time for payment of the purchase money and not one attempts to make payment of the purchase money by a certain date a condition of the continuance of the rights under the judgment. After the original judgment for specific performance it is the definite practice in England that all consequential relief by reason of any party failing to comply with the terms of the judgment must be sought by application to the Court by which the judgment was passed. Such applications are made by motion in the action showing that in England, after the original judgment the action is by no means ended but remains under the control of the same court. If the default is made by the purchaser in paying the purchase money there are several remedies open to the vendor. (I) He may on motion in the action obtain an order fixing a definite time and place for payment and delivery over of the conveyance and title deed and can, after the expiration of that time, levy execution for the amount if not paid. (2) He may apply by motion in the action for an order rescinding, not the judgment but the contract, and in order to succeed in such a motion he has to satisfy the Court that there has been a positive refusal to complete, which it may be observed in the present case, the respondent has certainly not proved. A similar right is given by Section 35 of the Specific Relief Act of 1877. (3) He can enforce his unpaid vendor's lien for the purchase-money and costs: (4) He can by motion in the action obtain an order for sale by the Court of the property when he will be at liberty to bid. The proceeds of the sale are paid into court and the vendor gets his contract price, interest and costs and the purchaser the balance if any. Where the vendor is in default, the remedies are even more varied.

(3.) It would seem to be absurd to hold that the mere fact that a date of completion is fixed in the Original Decree put an end to the action and that the control of the Original Court expires on the expiration of that date-and thus substitute in effect for all the known remedies stated above the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may as in the present case, be of a greater value than the contract purchase money, which, perhaps by some accident purchaser has failed to produce on the date fixed. In this particular case it is worth observing that there is no evidence that the first defendant was ready to execute a conveyance or hand over the title deeds in exchange for the money and in fact, so far from intending to complete he was appealing on the ground that the decree was wrong.