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Tribeni Tewary And Others v. Ramratan Nonia And Others
Structured Summary of the Provided Opinion
Factual and Procedural Background
The appeal is by the decree-holders arising from a suit for specific performance of a contract for sale of agricultural lands. The trial court dismissed the suit, but on appeal the appellate court reversed the trial court on 31 January 1955 and decreed specific performance, directing the plaintiff (vendee) to deposit Rs. 300 as the balance of the consideration within one month and directing the defendants to execute a sale deed failing which the deed would be executed through the Court. The Rs. 300 was not deposited within the stipulated period.
On 22 March 1955 the decree-holder applied for permission to deposit the amount and sought extension of time. The Court passed an order on 23 March 1955 “Issue chalan at the plaintiff's entire risk.” The decree-holder deposited the money on 24 March 1955. On 8 June 1955 the decree-holder sought execution of the decree. A miscellaneous proceeding was initiated by the judgment-debtor arguing that the execution petition was not maintainable because the payment required by the appellate decree was not made within the stipulated period and that the court had no jurisdiction to extend that time.
The Court of execution accepted the judgment-debtor's contention and held there was no power to extend the time fixed by the appellate court (referring to S.148 and S.151 CPC), allowing the miscellaneous case on 9 February 1956. The decree-holder's subsequent miscellaneous appeal was dismissed by the Subordinate Judge on 27 September 1956. The decree-holder then appealed to the court that delivered the present opinion.
Legal Issues Presented
- Whether the time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree.
- Whether the provisions of Section 148 of the Code of Civil Procedure (CPC) (and related powers such as Section 151) apply to a decree for specific performance that fixes a time for payment of the purchase money.
- Whether a payment made by the decree-holder after the period fixed in the appellate decree (but after permission by a successor court to deposit “at plaintiff's entire risk”) is a valid payment in law such as to render the decree executable.
Arguments of the Parties
Appellant's (Decree-holder) Arguments
- The decree passed for specific performance in this case is in the nature of a preliminary decree, and therefore the Court retains jurisdiction to extend or alter the time fixed in the judgment under Section 148 of the CPC.
- Relied on several decisions, particularly ILR 46 Mad 148 (AIR 1923 Mad 284), as establishing the principle that such decrees are preliminary and can be varied.
Respondent's (Judgment-debtor) Arguments
- The Court had no jurisdiction to extend the time fixed by the appellate court; the provisions of Section 148 CPC do not apply to a decree that fixes a time for payment of purchase money.
- Any payment made by the decree-holder after the period fixed by the appellate court was not payment “in the eye of law.”
- Contended that Section 35(c) of the Specific Relief Act indicates a special exception (permitting rescission) and that the conditions as to payment and performance are mutual and inter-dependent, so failure to pay within time discharges the obligation to perform.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Abdul Shaker Sahib v. Abdul Rahiman Sahib, ILR 46 Mad 148 : (AIR 1923 Mad 284) | Held that a decree for specific performance fixing a date of completion is mostly in the nature of a preliminary decree and that the Court has power under Section 148 CPC to alter or extend the time fixed for payment of the purchase money. | The court treated this as the leading judgment and adopted its view that such decrees are preliminary and that Section 148 CPC is available to alter or extend time fixed for payment. |
| Mt. Rama Bhatlu v. Mt. Annayya Bhatlu, AIR 1926 Mad 144 | Cited as following the view that a decree for specific performance fixing a time is preliminary and the Court may alter or extend time. | The court noted this case as one of the decisions that followed the leading Madras decision and used it to support the conclusion that Section 148 applies. |
| Abdur Rahim Molla v. Tamijaddin Molla, AIR 1933 Cal 580 | Cited as following the leading Madras decision (permitting extension under Section 148). | Considered among authorities that support the proposition that such decrees remain preliminary and are amenable to alteration under Section 148. |
| Gokul Prasad v. Fattelal, AIR 1946 Nag 29 | Cited as one of the cases following the view that the Court may extend the time fixed in a decree for payment. | Referred to as supportive authority for the proposition that Section 148 is available to alter or extend time in such decrees. |
| Ko Ba Chit v. Ko Than Daing, AIR 1927 Rang 311 | Cited as another decision following the leading Madras view permitting extension. | Used as part of the body of authority indicating acceptance of the preliminary-decree character and availability of Section 148 power. |
| Kurpal Hemraj v. Shamrao Raghunath Taote, AIR 1923 Bom 211 | Discussed the language of Section 35(c) of the Specific Relief Act and observed that the clause's language is not free from difficulty. | The court acknowledged the observation but, reading Section 35(c) as a whole, interpreted it to support the view that the decree remains pending until rescinded or money paid, reinforcing the availability of Section 148. |
| Amanatullah Mian v. Raghunath Prasad, AIR 1930 Pat 279 | Took a contrary view: because the Code of Civil Procedure is silent about altering the time fixed, it is difficult to accept that such alteration can be done under Section 148 CPC. | The present court considered this contrary decision, regarded it as technically arguable but ultimately rejected it, holding that Section 148 is available and that the decree is in substance preliminary. |
Court's Reasoning and Analysis
The court began by identifying the principal question — whether the time fixed in a decree for payment of purchase money in a specific performance decree may be extended by the Court that passed the decree (via powers under Section 148 CPC).
The court placed primary reliance on the division bench decision in ILR 46 Mad 148 (AIR 1923 Mad 284). The leading Madras judgment (Chief Justice Sir Walter Salis Sowvabe) reasoned that such a decree is largely in the nature of a preliminary decree; consequently, it would be absurd to treat the fixation of a completion date as terminating the court's control over the matter and rendering the decree dead if the purchaser fails to produce the money on that date. That reasoning drew on Chancery practice and an implication from Section 35(c) of the Specific Relief Act, 1877.
The court also discussed the separate reasoning of Wallace, J., in that case, who considered that the transaction remains fundamentally contractual and that, unless rescinded, mere failure by the vendee to pay does not destroy the contract; hence the court may extend time under Section 148 CPC.
Considering Section 35(c) of the Specific Relief Act, the court observed that the provision contemplates rescission in particular circumstances (where a purchaser makes default in payment ordered by the Court) and permits a court, in the same case, to rescind the contract by order in the suit. Reading the section as a whole, and construing the phrase “in the same case” as referring to clause (c), the court concluded that until the contract is rescinded under that provision the suit remains pending. Therefore, the decree retains a preliminary character until money is paid or the contract is rescinded.
The court acknowledged that the language of Section 35(c) had been described as "not free from difficulty" (per Kurpal Hemraj), but concluded that the only reasonable interpretation was the one supporting the preliminary-decree view. It rejected the narrower approach taken in Amanatullah Mian v. Raghunath Prasad (AIR 1930 Pat 279), which found difficulty in applying Section 148 where the Code was silent; the present court regarded that view as unsupportable on the facts and law before it.
Addressing the execution court's reliance on S.148 and S.151 being unavailable, the court held that Section 148 is available to the Court to alter or extend time where appropriate. The court therefore concluded that the payment made after the expiry of the period but pursuant to the subsequent permission (the chalan issued “at the plaintiff's entire risk”) was permissible in law, and the execution court's contrary view was incorrect.
The court observed that one of the lower courts had noted that a predecessor-in-office had permitted the deposit on the basis of illness of the plaintiff; although the execution court thought that payment was not sanctioned in law, the present court held that this view was wrong and that the payment was legally permissible.
Holding and Implications
HOLDING: The court held that a decree for specific performance which fixes a time for payment of the purchase money is in the nature of a preliminary decree and that the Court has power under Section 148 of the CPC to alter or extend the time fixed for payment. The court set aside the judgment and order of the lower appellate court and allowed the appeal.
Direct Effect on the Parties: The appeal is allowed; the earlier order disallowing execution (and the dismissal of the decree-holder's miscellaneous appeal) was set aside. The payment made by the decree-holder (deposited on 24 March 1955 pursuant to the chalan) was held to be permissible in law, and the execution proceeding will now proceed in due course. The court ordered that there will be no order as to costs.
Implications beyond these parties: The opinion relies on and follows a line of authority (led by the Madras division bench decision) that treats such decrees as preliminary and allows application of Section 148 CPC to extend or alter time fixed for payment. The opinion does not set out any express statement that it is creating a new precedent beyond its reasoning and reliance on existing authorities; its holding operates directly to resolve the parties' dispute and to allow execution to proceed.
1. This appeal is by the decree-holders. The main point involved in this case is whether the time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree. The facts giving rise to this appeal are as follows:— There was a suit instituted by the decree-holder for the specific performance of a contract of sale of some agricultural lands. At the trial the suit was dismissed, but in appeal the judgment given by the trial court was reversed and the appellate Court came to the view that the suit should stand decreed. This was on the 31st January, 1955. The exact operative portion of the order passed in appeal was in these words:—
“The result is that the findings and judgment of the learned lower Court are reversed. The plaintiff is entitled to specific performance of her contract and her suit is to be decreed with costs and pleader's fee at the minimum contested scale. Plaintiff is directed to deposit Rs. 300/- as the balance of the consideration money within a month of this order. Defendants 1, 2 and 3 are directed to execute a sale deed for the suit land in favour of the plaintiff failing which the sale-deed will be executed through Court. This appeal is accordingly allowed with costs and pleader's fee Rs. 24/-.”
2. It is the admitted case of the parties that the sum of Rs. 300/- referred to in the order passed by the appellate Court was not deposited by the vendee in time as stipulated therein. It is said that the decree-holder thereafter on the 22nd March, 1955, for the first time put in an application for permission to deposit that amount praying therein that for the reasons as stated by him in that application, the time granted by the Court of appeal should be extended. This application was taken up for orders on the 23rd March, 1955. The Court, on hearing the parties, passed the following order on the same day—
“Record received from the Court of the 2nd Additional Subordinate Judge Sasaram. Plaintiff's petition dated 22-3-55 for issue of chalan for deposit of the balance of the consideration money as ordered by the trial court amounting to Rs. 300/- put up. Order:
Issue chalan at the plaintiff's entire risk.”
3. The decree-holder, in pursuance of the aforesaid order, it is not denied, did deposit money on the 24th March, 1955. Thereafter, on the 8th June, 1955, the decree-holder put in an application for the execution of the decree which related to the performance of the contract in his favour. This application was numbered as Execution Case No. 45 of 1955. While this execution application was pending, a miscellaneous proceeding was started at the instance of the judgment-debtor with the plea that the execution petition was not maintainable in law in view of the fact that the performance of the contract by the defendants was subject to the payment of Rs. 300/- as decreed by the appellate Court and as the same was not paid within the period stipulated in the decree passed by the appellate Court, the decree as passed thereunder was not executable.
4. This objection against the execution of the decree in substance was based on the contention that the Court had no jurisdiction to extend the time which was fixed by the appellate Court for the payment of Rs. 300/-. In other words, the provisions of law as laid down in Section 148 of the CPC did not apply to the facts of the case. That being so, any payment made by the decree-holder subsequent to the period fixed by the appellate Court was not payment in the eye of law. The Court of execution accepted this contention raised by the judgment-debtor, and in doing so observed that
“………. even if she was ill, in my opinion time cannot be extended. A court which passes a decree for specific performance of contract to sell kinds has no power or jurisdiction to extend the time fixed for payment of the purchase money, nor can an appellate court do so either under S. 148 or Section 151 of the CPC. In result, the applicants succeed and it is therefore ordered that the miscellaneous case be allowed on contest with cost of Rs. 16/- only.”
5. Against this order which was passed on the 9th February, 1956, the decree-holder came up in appeal in Miscellaneous Appeal No. 28/8 of 1956. That was disposed of by Mr. S.S Hussain, Additional Subordinate Judge, by his order dated the 27th September, 1956. In the opinion of the learned Subordinate Judge, the view taken by the Court of execution was right. Accordingly, the appeal was also dismissed. Hence this Miscellaneous Appeal by the decree-holder.
6. Mr. Tarkeshwar Nath appearing for the appellants has contended that the two Courts below have failed to realise that in this case the decree passed for specific performance of the contract was one in the nature of a preliminary decree, and that being so, the Court had full jurisdiction to extend or alter the time as fixed in the judgment by the appellate Court. In support of this contention reliance has been placed by the learned Advocate on the decisions in Abdul Shaker Sahib v. Abdul Rahiman Sahib, ILR 46 Mad 148 : (AIR 1923 Mad 284), Mt. Rama Bhatlu v. Mt. Annayya Bhatlu, AIR 1926 Mad 144, Abdur Rahim Molla v. Tamijaddin Molla, AIR 1933 Cal 580, Gokul Prasad v. Fattelal, AIR 1946 Nag 29 and Ko Ba Chit v. Ko Than Daing, AIR 1927 Rang 311, On this point the leading judgment given in our country seems to be the one which is reported in ILR 46 Mad 148 : (AIR 1923 Mad 284).
7. This decision was given by a division bench of the Madras High Court. The leading judgment in that case is by the learned Chief Justice Sir Walter Salis Sohwabe. The other learned Judge Wallace, J. agreed with him, but on a ground slightly different. The view taken by the learned Chief Justice was that the decree passed in such a case is mostly in the nature of a preliminary decree. Therefore, it is open to the Court under Section 148 of the CPC to alter or extend the time fixed therein for the payment of the purchase money.
8. In support of this view the learned Chief Justice has taken into consideration the practice prevailing in the Chancery Courts in England as also the implication that arises from Section 35(c) of the Specific Relief Act, 1877. Accordingly, he held:
“It would seem to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts 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 the purchaser has failed to produce on the date fixed.”
9. Wallace, J., as already stated, though he agreed with the order passed by the learned Chief Justice, gave his own reasons for it. According to the learned Judge, the transaction, despite the adjudication given by the Court on that matter remains in the realm of contract, and, therefore, unless the contract is rescinded by any of the parties to it, the mere failure on the part of the vendee to pay the consideration or part of the consideration as stipulated in the document cannot destroy the contract.
10. He also accordingly held that it was within the power of the Court to extend the time as provided in Section 148 of the CPC. This case has been followed in the other cases referred to above, though in some preference has been given to the view taken by the learned Chief Justice and in others to the view taken by Wallace, J. In my opinion, apart from the other reasons given by the learned Chief Justice, Section 35(c) of the Specific Relief Act clearly suggests that the decree passed in a suit for specific performance of a contract for the purchase of immovable property remains more or less as a preliminary decree unless the purchase money is paid or for the default in the payment of the same the contract is got rescinded. The relevant portion of that section reads:—
“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:—
(a) ……….
(b) ……….
(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 purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.
In the same case, 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”.
11. It is true that the language of the last clause, as observed in Kurpal Hemraj v. Shamrao Raghunath Taote, AIR 1923 Bom 211, is rather not free from difficulty. But reading it as a whole, the only reasonable interpretation that can be put to it is that the phrase “in the same case” refers to the case provided in clause (c) of S. 35. If that is so, then that section makes it clear that in order to avoid the effect of the decree in the case of non-payment of purchase money by the vendee as adjudicated thereunder the defendant has to take certain step and unless that step is taken the matter remains pending.
12. In other words, until that stage has arrived or the contract is rescinded the suit remains pending and as such the Court has got the power to alter or extend the time under Section 148 of the CPC. This view perhaps was not placed before the learned Single Judge who decided the case in Amanatullah Mian… v. Raghunath Prasad…Opposite Party., AIR 1930 Pat 279. In his opinion, the Code of Civil Procedure being silent on the point as to the fixation of time in a case like this by the Court it was difficult for him to accept that such an alteration or extension could be done in exercise of the power given under Section 148 of the CPC. Technically, there may be some force in this view of the matter. But I think that, looking substantially at the problem, the decree passed in a suit for specific performance of contract of sale, providing therein a time period for the payment of the purchase money, is in the nature of a preliminary decree, and if that is so, then the Court remains in seisin of the case until the money is paid or the contract is got rescinded as provided in Section 35(c) of the Specific Relief Act.
13. In that view of the matter, it has to be held that the provision as laid down in Section 148 of the CPC is available to the Court for the alteration or extension of time if thought fit and proper. As such, with all respect to the learned Judge I think the view taken in AIR 1930 Pat 279 cannot be supported.
14. But Mr. Sarwar Ali appearing for the respondents has strongly stressed that any interpretation of a decree like this as a preliminary decree on the ground of law as provided in Section 35(c) of the Specific Relief Act is not at all warranted in law. According to Mr. Sarwar Ali, the very provision made in S. 35(c) suggests that as an exception to the rule special provision has been made therein to get a contract rescinded in spite of the fact that the suit for specific performance of that contact has been decreed. I think that in view of the reasons given in the decisions referred to above as also in view of what I have just stated it is difficult to accept this contention.
15. Lastly Mr. Sarwar Ali has also raised the contention that the conditions as to payment and as to the performance of the specific contract in such cases are mutual and inter dependent. Therefore, according to him, the moment there was a failure of payment within the time as stipulated in the decree, the obligation imposed thereunder on the defendant for the specific performance of contract has to be held as discharged.
16. This contention, in my opinion, in view of what I have already held, is not necessary to be decided; for, if it is accepted that the time could be extended and that the sum was paid within time, the question of failure does not remain to be considered. The lower appellate Court has observed that “As a matter of fact in this case that discretion was exercised originally by the predecessor-in-office of the learned Munsif who passed the order, who in spite of the fact that under the judgment Ext. 1 the plaintiff was to deposit Rs. 300/- within one month from 31-1-1955 permitted the amount to be deposited under the chalan Ext. A dated 24-3-1955 on the ground of illness of the plaintiff as is evident from her petition Ext. “B”.
17. But it thought, as already stated above, that this payment was not sanctioned in the eye of law. That view, however, being wrong, it has to be held for the reasons stated above that the payment made was one as permissible in law. That being so, the alternative contention raised by Mr. Sarwar Ali does not arise for consideration, though I feel that even on that point the case of the defendants cannot be supported. Accordingly, the judgment and order of the lower appellate Court is set aside the appeal is allowed. But in the circumstances of the case, there will be no order for costs. The execution proceeding will now proceed in due course.
K.S.B
18. Appeal allowed.
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