RAMACHANDRA CHETTIAR Vs. KANDASAMI PILLAI

JUDGEMENT

(1.) In a preliminary decree in a suit for partition the decree of the trial Court provided, that the plaintiff be entitled to a half share in the plaint A schedule items 1 to 5 described hereunder on payment into Court within six months from this date Rs. 1,102-5-0 with interest thereon at six per cent, per annum from the date of plaint, that is, 15 September, 1943, till payment. The amount was not paid within the period of six months from the date of the decree of the trial Court. There was an appeal against that decree and that appeal was finally disposed of on 28 June, 1946. Within six months of the date of the appellate decree the plaintiff deposited the amount into Court, and applied in LA. No. 386 of 1946 for permission to deposit the amount due under the preliminary decree which was confirmed on appeal into Court and the learned Subordinate Judge granted a week's time from the date of the Order, 8 January, 1947. That Order, the first defendant, petitioner, seeks to set aside in revision.

(2.) The main contention of the petitioner wat that the Court had no jurisdiction to extend the time fixed in the decree, that is, six months from the date of the preliminary decree of the trial Court. The learned advocate for the petitioner relied on the decisions in Mohideen Kuppai V/s. Ponnusami Pillai (1915) 3 L.W. 29. and Gopala Iyer V/s. Sannasi(1914) I L.W. 882..Both these decisions were considered in Abdul Shaker Sahib V/s. Abdul Rahiman Sahib (1922) 44 M.L.J. 107 : I.L.R. 46 Mad.148 by a Division Bench consisting of Schwabe, C.J. and Wallace, J. All these decisions again were considered in Mahomadalli Sahib V/s. Abdul Khadir Saheb (1927) 59 M.L.J. 351. It should be unnecessary to go at great length into the same question. The basis of the decision in Abdul Shaker Sahib V/s. Abdul Rahiman Sahib (1922) 44 M.L.J. 107 : I.L.R. 46 Mad.148 appears to me to be the observation of Schwabe, C.J., at page 155: As long as this form of decree is understood to be of a preliminary, nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use. In Mahommadalli Sahib V/s. Abdul Khadir Saheb (1927) 59 M.L.J. 351. Jackson, J., said with reference to the observations of Schwabe, G.J.: This with all respect lays down an eminently sensible rule of procedure...and there is no ruling really to the contrary.

(3.) Thiruvenkatachariar, J., referred to the scope of Sec. 35 of the Specific Relief Act. Even with reference to that, the conclusion finally reached by the learned Judge was that so long as the Court retained its power under Section 35 (c) of the Specific Relief Act to rescind the contract the Court had power to extend the time originally granted by it, obviously because the suit was still pending before the Court. That brings it exactly within the scope of the principle laid down by Schwabe, C,J. Idumba Parayan V/s. Pethi Reddi is directly in point. There the learned Judges held that where a decree in a suit for partition provided inter alia that the plaintiffs could recover certain properties from the alienees on payment of a sum of money into Court by a certain date without any provision as to the effect of non-payment and the plaintiff paid the money on a subsequent date the Court had jurisdiction to extend time for payment. The learned Judges observed that the decree was in terms and in effect one for redemption and the Court had jurisdiction to extend the time under Order 34, Rule 8, Civil Procedure Code. Should an alternative basis be needed for the jurisdiction of the Court to extend time for payment that should be found in Order 34, Rule 8. But even without that, on the basis of the principles laid down in Abdul Shaker Sahib V/s. Abdul Rahiman Saheb1, the Court obviously, had jurisdiction to extend time.