1. One Ibrahim Sheriff, the petitioner and the appellant before me and his brother Mastan Sheriff jointly purchased a house on 11th July, 1940. But they found that they could not conveniently enjoy the house jointly. So they entered into an agreement in counter-part on 26th October, 1952, under which Ibrahim Sheriff was to purchase the half share of Mastan Sheriff on payment of a particular amount within a specified time. In default option was given to Mastan Sheriff to pay the amount to Ibrahim Sheriff and get a sale deed with respect to the latter's half share in the house. It appears that Ibrahim Sheriff did not pay the amount in time. Therefore, Mastan Sheriff filed O.S No. 79 of 1953 in the District Munsif's Court, Guntur for specific performance of the agreement of sale by directing Ibrahim Sheriff to execute the sale deed with respect to his half share in the house on Mastan Sheriff paying the purchase price. That suit was dismissed by the District Munsif's Court, Guntur. But Masthan Shariff filed an appeal, A.S No. 179 of 1953 in the Court of the Subordinate Judge, Guntur. It was allowed and a decree was passed by that Court in the following terms;

“(1) that the defendant do excuse, and register a proper conveyance in favour of the plaintiff in respect of his half share in the property specified in the plaint schedule (annexed to the decree of the lower Court) in pursuance of the contract of sale dated 26th October, 1952, within one month from 29th November, 1954, on the plaintiff depositing before the lower Court the sum of Rs. 2,250 in the meanwhile, and that the defendant do put the plaintiff in possession of the said property;

(2) that in case of default on the part of the defendant as stated above, the plaintiff be at liberty to apply to the lower Court for execution of a proper conveyance through Court in execution proceedings on the plaintiff depositing the requisite stamp and registration charges;

(3) that the future mesne profits if any due to the ‘plaintiff be determined by the 1ower Court in separate proceeding son a separate application to be filed by him under Order 20, rule 12 of the Code of Civil Procedure.

(4) that the defendant do pay to the plaintiff the sum of Rs. 380-13-0 towards costs in the appeal and also the sum of Rs. 388-7-0 towards costs in the suits; and

(5) that the defendant do bear his own costs Rs. 151-0-0 in the appeal and Rs. 178-12-0 in the suit.

2. This decree is dated 29th November, 1954. Ibrahim Sheriff filed S.A No. 328 of 1955 in the High Court of Andhra which was dismissed by the High Court of Andhra Pradesh on 22nd October, 1957. Mastan Shariff, the decree-holder, filed I.A No. 1000 of 1958 for ascertainment of mesne profits but that was dismissed with costs after contest. It may be mentioned that till then the decreeholder did not deposit the amount of Rs. 2,250 as per the decree of the first appellate Court within one month from thedate of that decree. I.A No. 1000 of 1958 appears to have been dismissed on the objection of Ibrahim Sheriff that the decreeholder did not deposit the amount of Rs. 2,250 within one month as per the decree of the appellate Court and did not obtain a sale deed in his favour as per the terms of that decree. It may also be mentioned that I.A No: 1000 of 1958 for ascertainment of mesne profits and for passing a decree therefor was dismissed on 6th November, 1958, and that order had become final. Still, the decree holder did not apply for extension of the time, granted by the appellate Court in the decree i.e, one month from 29th November, 1954, and did not deposit the amount of Rs. 2,250 to enable him to get a sale deed executed with respect to the half share in the house belonging to Ibrahim Sheriff.

3. The decree-holder next filed E.P No. 629 of 1960 under Order 21, rules 34, 43 and 66, Civil Procedure Code, for execution of the registered sale deed by the judgment-debtor and for attachment and sale of moveables and for recovery of the costs. The said E.P was filed on 5th April, 1960. But the judgment-debtor in his turn, filed I.A No. 1419 of 1960 under section 35 of the Specific Relief Act and section 151, Civil Procedure Code, to rescind the contract of sale dated 26th October, 1952, and to cancel, supersede or revoke, the decree and declare it as invalid and inexecutable. It was alleged in that T.A that as the decreeholder did not deposit the amount in Court as per the first appellate Court's decree, he is not entitled to have the same decree executed and so the contract dated 26th October, 1952, should be rescinded and the decree in O.S No. 79 of 1953 should be declared as invalid and inexecutable. It was only thereafter on 2nd July, 1960, that the decree holder deposited the amount of Rs. 2,250 directed by the appellate Court in A.S No. 179 of 1953 on the file of the Subordinate Judge's Court, Guntur and also filed I.A No. 1710 of 1960 under section 151 and section 5 of the Limitation Act to condone the delay, if any in depositing the amount. It is clear from these facts that the decrecholder deposited the amount about five and a half years after the date of the appellate decree in spite of the fact that his earlier application I.A No. 1000 of 1958 for ascertainment of mesne profits was dismissed even on 6th November, 3958, on the ground that the decreeholder did not deposit the amount within the time fixed by the appellate Court decreeing specific performance and did not obtain a sale deed as provided thereunder. What is more, the decreeholder did not deposit the amount or apply for extension of the time for depositing the amount even when he filed E.P No. 629 of 1960 on 5th April, 1960, for execution of the decree for specific performance nearly one and a half years of the dismissal of I.A No. 1000 of 1958. He deposited the amount only a bout a month after the judgment-debtor filed I.A No. 1419 of 1960 under Election 35 of the Specific Relief Act to rescind the contract of sale dated 26th October, 1952, and to revoke the decree for specific performance. The lower Court allowed E.A No. 1710 of 1960 and condoned the delay in depositing the amount of Rs. 2,250 and dismissed the judgment-debtor's application I.A No. 1419 of 1960 to rescind the contract and to revoke the decree for specific performance. It over-ruled all the objections of the judgment-debtor to E.P No. 629 of 1960 and posted the execution petition to 28th October, 1960, to enable the decree-holder to deposit the non-judicial stamps on which the sale deed has to be engrossed. Against the order in E.P No. 629 of 1960, an appeal was filed by the judgment-debtor (A.S No. 32 of 1961) in the Subordinate Judge's Court, Guntur. Against the order in I.A No. 1419 of 1960, the judgment-debtor filed C.R.P No. 1004 of 1961 in the High Court. By order dated 8th March, 1963, passed by this High Court in C.M.P No. 7929 of 1961 A.S No. 32 of 1961 on the file of the Subordinate Judge's Court, Guntur is transferred to the file of this Court to be heard along with C.R.P No. 1004 of 1961 and numbered as C.M.A No. 467 of 1963. Hence they are posted together before us for hearing. The following are the points argued by Mr. G.V.R Mohan Rao, the learned Counsel who appeared for the judgment-debtor in the C.M.A

(1) As the decree for specific performance was passed by the appellate Court viz., the Subordinate Judge's Court, Guntur directing the plaintiff to deposit the sum of Rs. 2,250 on or before 29th December, 1954, before he could get a sale deed with respect to the half-share belonging to the, judgement-debtor in the suit house, the District Munsif's Court had no jurisdiction to extend the time in paying the said amount. It is only the Court that passed the decree for specific performance, according to the learned Counsel, that could extend the time and not the trial Court which dismissed the suit;

(2) Even assuming that the District Munsif's Court, Guntur had jurisdiction to extend the time fixed by the appellate Court (Subordinate Judge's Court, Guntur) still there are no reasons at all for extending the time;

(3) In any view the executing Court had no jurisdiction to extend the time; and

(4) Therefore the lower Court should have rescinded, the contract under section 35 (c) of the Specific Relief Act (I of 1877) which is as follows:—

“35. Any person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Court in any of the following cases, namely:—

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(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease has been made and the the purchaser or lessee makes default in payment of the purchase-money or other sums Which the Court has ordered him to pay.

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4. On the first point reference has to be made to the Decision of the division Bench of the Madras High Court in Abdul Shaker Sahib v. Abdul Rahiman Sahib . 1923 44 M.L.J 107; I.L.R 1923 46 Mad. 148; 1923 M.W.N 1.. In that case a decree for specific performance was passed in the following terms:

“that upon payment by the plaintiffs on or before the 19th day of December, 1921 of the sum of Rs. 4,000 only the first defendant do execute and register a proper deed of conveyance of the properties in the schedule.”

5. But before the expiry of the period, the defendant gave notice of appeal and the plaintiffs applied to the judge on the Original Side for extension of time after two months Sir W.S Schwabe, Chief Justice pointed out in his judgment that a decree of the kind which was under consideration by him was in the nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders therein including in appropriate cases the extension of the time. It was also pointed out by the learned Chief Justice:

“It is a well established principle that persons who desire the assistance of the Court in obtaining equitable relief must come quickly. In each case it is a question to be decided on the facts whether the delay on the part of the plaintiff is such that the Court ought not to exercise its powers”.

6. With regard to the contention of Mr. G.V.R Mohana Rao that the District Munsif's Court had no jurisdiction to extend the time when it was the Subordinate Judges Court as the appellate Court that passed the decree for specific performance a reference to the last paragraph in the judgment of the learned Chief Justice in the said case will be very appropriate and it is as follows;

“The appeal will therefore be dismissed with costs. The time for the completion will be extended by this decree for a period of two months. It must be understood that the Original Court still has; jurisdiction in this matter and has full powers to deal with any point that may arise including if necessary an application for further time.”

7. Next it is necessary to refer to the decision of a Bench of this High Court in Venkata Rami Reddy v. Adinarayana; a decree for specific performance was passed by the trial Court directing the plaintiff to deposit the balance of the purchase money amounting to Rs. 75,000 within a particular time. There was an appeal by the defendant to the High. Court. While dismissing that appeal the High Court by its judgment dated 24th April, 1959, granted a fresh period of three months to enable the successful plaintiff to deposit the balance of the purchase price of Rs. 75,000. But the plaintiff deposited only Rs. 53,500 in the trial Court on 24th July, 1959, which was the last date for depositing the amount of Rs. 75,000. Then the plaintiff filed in the High Court, which decided the appeal C.M.P No. 6736 of 1959 praying for extension of the time by three weeks for depositing the balance of the amount viz., Rs. 21,500 in the trial Court. In fact, pending disposal of the Civil Miscellaneous Petition the plaintiff deposited in the trial Court, the said amount on 4th August, 1959. The Petition came up for hearing before the Division Bench consisting of Syed Qamar Hasan, J., and Jaganmohan Reddy, J., subsequently. By their order dated 23rd October, 1959, the learned Judges dismissed the said petition. The earlier decisions on the point were referred to particularly the following observations of Schwabe, CJ., in Abdul Shaker Sahib v. Abdul Rahiman Sahib . I.L.R 1923 46 Mad. 148; 1923 44 M.L.J 107; 1923 M.W.N 1..

“It must be understood that the original Court still has jurisdiction in this matter and has full powers to deal with any point that may arise including if necessary an application for further time.”

8. Then the learned Judges held:

“It would thus appear that though we had fixed a fresh period in our judgment While disposing of A.S No. 627 of 1954 the power of the trial Court is still intact to consider the question of extension in the circumstances as mentioned in the affidavits filed in support of the petition. In these circumstances we need not go into the larger question whether it is open to the appellate Court to extend further time in the present circumstances.”

9. With that observation, the petition was dismissed. These two decisions clearly indicate that though time may be fixed for payment of the purchase price in a decree for specific performance by the appellate Court, the trial Court has still jurisdiction to extend that time if a case is made out for extending it. In Someswar Dayal v. Widow of Lalman Skak . A.I.R 1958 All. 488., it was held that the decree which is made in a suit for specific performance is not a final decree of the character that completely debars the Court from extending the period fixed by it, for the decree in such a suit partakes of the nature of a contract and unless it is rescinded or performed it subsists and therefore the right of the Court to make the extension of time for payment also subsists. But this decision has no direct bearing on the question whether the trial Court would have jurisdiction to extend the time fn a case where it is the appellate Court that fixed the time for payment of the purchase price.

10. Mr. G.V.R Mohana Rao relied upon the decision in Rama Bhatlu v. Annayya Shatlu. That was a decision of a single Judge, Phillips, J. That was also a case of a suit for specific performance of a contract to transfer immovable property. The facts of that case are not quite clear. But the learned Judge states in his judgment that before a second appeal was filed in the High Court, the plaintiff failed to deposit money in accordance with the decree of the lower appellate Court and that it had been held by that Court that it had no power to alter its order giving three months time for the payment and it dismissed the petition filed by the plaintiff for extension of time. A revision also was filed against the order of the lower appellate Court dismissing the plaintiff's petition for extension of time. The learned Judge referred to the decision in Abdul Shaker Sahib v. Abdul Rahiman Sahib, and held that the appellate Court had power to extend the time. Next he considered the question whether there were sufficient grounds for excusing the delay and observed that the delay in such a case should be looked at more leniently than a case of limitation. The learned Judge pointed out that in that particular case the delay was caused by the Court in furnishing a certified copy of the decree for specific performance and that the officers of the Court were mainly responsible for the delay. In those circumstances, the learned Judge excused the delay himself. It appears from the report that along with the revision petition against the order of the lower appellate Court refusing to excuse the delay, an independent petition was filed in the High Court along with the main second appeal for extending the time. Therefore it is not clear whether the learned Judge allowed the revision petition and extended the time or extended the time oh the independent petition filed in the High Court for extension of time. But the question whether the application for extension of time could be entertained even by the trial Court when the decree for specific performance was passed only by the appellate Court was not raised and considered lay the learned Judge. Therefore, that decision is not an authority for the proposition urged by Mr. G.V.R Mohana Rao, that in a case where a trial Court dismissed a suit for specific performance but was decreed only by an appellate Court which granted a certain time for paying the purchase price, it is only the appellate Court that could extend the time on sufficient cause being shown and not the trial Court, which dismissed the suit. In my opinion the decisions in Abdul Shaker Sahib v. Abdul Rahiman Sahib, and Venkata Rami Reddi v. Adinarayana, are authority for the proposition that even though time is given by the appellate Court in its decree for depositing the purchase price still the trial Court would have jurisdiction to extend the time for payment of the purchase price if sufficient cause for the delay is shown. No doubt as pointed out by Mr. G.V.R Mohana Rao, in these two cases, the trial Court itself granted a decree for specific performance; but in my view that would not make any difference in principle. Therefore the first point urged by Mr. G.V.R Mohana Rao, is found against.

11. Next I shall consider the third point argued by Mr. G.V.R Mohana Rao, viz., that the executing Court had not jurisdiction to extend the time, but it is only the trial Court that could entertain a petition for the purpose. On a plain reading of Section 35, Clause (c) of the Specific Relief Act, Mr. G.V.R Mohana Rao's contention seems to be well-founded. Clause (c) of section 35 refers to decrees for specific performance of a contract of sale, or of a contract to take a lease and it specifies what may happen if the purchaser or lessee makes default in payment of the purchase money or other sums which the Court has ordered him to pay. The last paragraph of clause (c) provides that the Court may, by order, in the suit in which the decree has been made and not complied with rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. Therefore it is clear that it is only the Court which passed the decree may rescind the contract. It implies that the Court may extend the time also in the suit Itself. In my view the executing Court cannot extend the time granted by the Court which passed the decree. It is well settled that an executing Court has to execute the decree as it is and cannot in any manner alter the terms of the decree.

12. In the present case originally E.A No. 1710 of 1960 appears to have been typed as an I.A i.e an application in the suit itself. The same situation continues in the affidavit filed in support of the application; but the application itself is, amended as an E.A i.e an application iti execution of the decree that means the decree holder invoked the jurisdiction of the executing Court and not of the Court which tried the suit though in the present case both the Courts happened to be the District Munsif's Court, Guntur.

13. But Mr. Sarma, on behalf of the plaintiff-respondent, urged that the order in E.A No. 1710 of 1960 condoning the delay in depositing the purchase price has become final as no appeal or revision was filed against it and that therefore it is no longer open to the judgment-debtor to raise that objection in this Court. This objection is sought to be met by Mr. Mohana Rao on the ground that the order in E.A No. 1710 of 1960 is one of an interlocutory nature in E.P No. 629 of 1960 inasmuch as the said E.A, must be deemed to have been filed only in E.P No. 629 of 1960. Therefore it is urged that in view of section 105, Civil Procedure Code, it is open to him to question the legality and correctness of the order in E.A No. 1710 of 1960 in the appeal filed against the order in E.P No. 629 of 1960 i.e, in C.M.A No. 467 of 1963. Section 105, Clause (1), Civil Procedure Code, which alone is relevant in this context is as follows:—

“105(1) Save as otherwise expressly provided no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from any error defect or irregularity in, any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.”

14. The argument of Mr. Mohana Rao is on the assumption that the expression original jurisdiction in this clause means the jurisdiction exercised by the first Court before which any cause comes up for disposal whether on the trial side or on the execution side. Neither of the learned Counsel has placed before me any decision which tthrows light on this question. But in my view E.A No. 1710 of 1960 though it does not specifically purport to have been filed in E.P No. 629 of 1960 is virtually one in the nature of an application in E.P No. 629 of 1960. In the Civil Rules of Practice, execution petition is defined as a petition to the Court for the execution of any decree or order and execution application is defined as an application to the Court made in a pending execution petition (see Clauses 4 and 5 of Rule 3 of the Civil Rules of Practice). Thus it is seen that an execution application is an interlocutory application filed in the main’ execution petition for the execution of the decree. Therefore I hold that though in the present case E.A No. 1710 of 1960 does not specifically purport to have been filed in E.P No. 629 of 1960 it is really an application in that E.P Therefore in my opinion it is open to the appellant in Transferred Appeal againt Order No. 467 of 1963 to question the legality of the order of the lower Court in E.A No. 1710 of 1960.

15. I have already indicated above that an application to extend the time for depositing the money before calling upon the defendent to execute the sale deed is to be filed not in the executing Court but in the Court in which the suit was filed in which a decree for specific performance was passed whether by that Court or by the appellate Court.

16. For the above reasons I am constrained to allow the Transferred Appeal against Order No. 467 of 1963 and remand E.P No. 629 of 1960 to the Court of the District Munsif, Guntur, for fresh disposal. I also set aside the order passed in E.A No. 1710 of 1960 condoning the delay in payment of the purchase price directed to be paid by the decree for specific performance. The lower Court will take it on its file and number it as an I.A and not as an E.A, on its execution side and consider the said application to excuse the delay afresh having regard to all the circumstances of the case.

17. It follows that the ordef in I.A No. 1419 of 1960 also has be to set aside and the I.A remanded to the trial Court because the order to be passed in I.A No. 1419’ of 1960 will depend upon the order now to be passed after this remand on the application to excuse the delay in paying the purchase price as per the terms of the decree for specific performance. Therefore, C.R.P No. 1004 of 1961 is allowed and I.A No. 1419 of 1960 is remanded to the lower Court to be tried along with the application to excuse the delay in depositing the amount in Court as per the decree for specific performance which application is E.A No. 1710 of 1960 which is now to be numbered by the lower Court as an I.A in the suit itself and decide it not as an executing Court but as the Court in which the suit for specific performance was filed. The parties will bear their own costs in C.R.P No. 1004 of 1961 and Tr. Appeal against Order No. 468 of 1963. After the above judgment was delivered Mr. Sarma for the respondent says that he also argued that I.A No. 1419 of 1960 was not maintainable in the District Munsif's Court but should have been filed in the Subordinate Judge's Court, Guntur which actually passed the decree for specific performance. I do not remember that any such argument was advanced before me. Now that question has not been dealt with by me in this judgment, it will be open to Mr. Sarma to-urge that point when I.A No. 1419 of 1960 and the other petition are considered by the lower Court as per the order of this remand.

18. Appeal and Revision allowed. Matters remanded.