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Beni Sah Turaha Decree Holder v. Sew Sah Turaha And Another Judgement-Debtors
Structured Summary of the Provided Opinion
Factual and Procedural Background
This is an appeal by the decree-holder from concurrent decisions of a Munsif of Sealdah and the Subordinate Judge of Alipar. The courts below were dealing with an application under Rule 47 of the Civil Procedure Code (CPC).
The opposite party (decree-holder in the appeal) had filed a suit for specific performance against the petitioners. The suit was decreed on compromise on 12 March 1947. Under the terms of the compromise: (a) the opposite party was to pay Rs. 250 to the petitioners on 12 March 1947; (b) the remainder, Rs. 76, was to be paid within a week, i.e., by 19 March 1947; and (c) the petitioners would execute a deed of reconveyance if Rs. 75 was paid within 19 March 1947.
The sum of Rs. 260 was paid on 12 March 1947, but the remainder of Rs. 76 was not paid until 21 March 1947 (it is recorded that 20 March 1947 was a holiday). The opposite party put the decree into execution because the petitioners refused to execute the deed of reconveyance.
The petitioners filed a petition under Rule 47 CPC asserting that the decree was not executable because the Rs. 76 was not paid by 19 March 1947. The opposite party opposed, submitting that the one-day delay could be condoned. The learned Munsif framed the question as “Is the decree executable?” and held that time was of the essence and the short delay could not be condoned. The Munsif rejected the argument that the Court’s acceptance of the deposit on 21 March divested the petitioners of their rights, holding that mere acceptance did not have that effect.
On appeal, the Subordinate Judge dealt with the matter at greater length but reached the same result, concluding that time was of the essence and that the Court was not entitled to extend the time fixed by the parties under the compromise decree. The appellant then filed a second appeal, which is the subject of this opinion.
Legal Issues Presented
- Is the decree executable in view of the fact that the balance of Rs. 76 was not paid within the date fixed by the compromise (19 March 1947)?
- Whether the Court had jurisdiction to extend the time fixed by the parties for payment (i.e., could the Court extend the time for deposit) and, if it had jurisdiction, whether an extension was permissible in the present circumstances.
Arguments of the Parties
Appellant (decree-holder) — Principal contentions
- The appellant's counsel (Mr. M. N. Ghose) identified two questions: (1) whether the Court had jurisdiction to extend the time fixed by the parties, and (2) if the Court had jurisdiction, whether extension was permissible in this case.
- Argument that the relevant inquiry (whether time was of the essence) depends on the intention of the parties and that intention is a question of fact; the appellant relied on authorities (including Jamshed Khodaram Irani v. Burjorji Dhunji bhai) to show equitable relief might be granted despite failure to keep dates if justice can be done.
- Factual argument emphasizing that the appellant had paid most of the money and only a small amount (Rs. 76) remained outstanding effectively for one day, and one of the two days it was outstanding was a court holiday. The appellant relied on a petition of 13 August 1947 stating that he believed he need not pay until the 19th elapsed, that he tendered payment on the 20th and was refused, then found the Court closed and paid into Court on the 21st.
- Argument that because the Court accepted the deposit on 21 March after hearing the parties, there had in fact been an extension of time.
Respondent (petitioners opposing execution) — Principal contentions
- The respondents (represented by Mr. Bholanath Roy) contended that decisions relied upon by the appellant were not on point because those involved ordinary contracts, whereas here the compromise had been made part of the decree.
- They maintained that the lower courts correctly found as a matter of fact that time was of the essence and that the Court could not extend the time fixed by the parties under a compromise decree.
- The respondents also opposed the contention that the Court's mere acceptance of money into custody divested the petitioners of their rights, arguing that the Court's custody was subject to a decision on the question of right and did not amount to an extension of time.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Akkach Mondal (Defendant) v. Aminuddi Mullik (Plaintiff), 23 C.W.N. 439 : A.I.R. (6) 1919 Cal. 68 | Illustrates a case where part payment was made into Court, an enlargement application was refused, but the defendant paid after the time expired and the trial Judge considered it not unjust to extend time on the facts. Used to examine whether courts can in practice extend time where objections are not pressed. | The Court considered the decision and noted its factual basis (that the plaintiff's objection was not seriously pressed) and treated it as not establishing a general conflict of authority allowing extension in all cases; it was distinguished on its facts from the present case. |
| Kshetra Mohon Ghosh v. Gour Mohan Kapali, 37 C.W.N. 878 : A.I.R. (21) 1934 Cal. 21 | Held explicitly that where a certain time is fixed by a decree for taking steps and the decree directs dismissal on failure, the Court has no jurisdiction to extend the time limited by the decree. | The Court relied on this authority as supporting the proposition that where a decree itself fixes time for performance and prescribes consequences, the Court cannot extend that time; this authority weighed against the appellant's submission that the Court could extend the time. |
| Jamshed Khodaram Irani v. Burjorji Dhunji bhai, 43 I.A. 26 : A.I.R. (2) 1915 P.C. 83 | Holds that Section 65 of the Contract Act aligns with English law: specific performance may be granted despite failure to keep dates if justice can be done and nothing in express stipulations, nature of property, or surrounding circumstances makes relief inequitable; an intention to make time of essence may be inferred from pre-contract dealings but not from post-contract events. | The appellant relied on this authority to argue discretionary equitable relief could be appropriate; the Court observed the principle but held it was not helpful on the present factual question because here the compromise was made part of a decree and the central issue was the factual finding that time was of the essence. |
Court's Reasoning and Analysis
The Court proceeded by distinguishing questions of legal principle from questions of fact and by reviewing both the factual record and the relevant authorities.
- Question of fact — whether time was of the essence: The Court emphasized that whether time is of the essence is a question of the parties' intention, which is a question of fact. The findings of the courts below on this question of fact are binding on the appellate Court unless shown to be wrong.
- Evidentiary posture: The Court noted from the order-sheet of the learned Munsif that no evidence had been adduced by either side; consequently the compromise as recorded in the decree constituted the only evidence of the parties' agreement. The lower courts therefore had before them the recorded terms, and they concluded that time was of the essence.
- Effect of recording compromise in decree: The Court accepted the ordinary principle that a compromise recorded and embodied in a decree becomes part of the court's order. Where the Court has fixed a final date for settlement by the act of a party and that party does not comply, the Court treated that as bringing the matter to an end under the terms of the decree.
- Acceptance of deposit by the Court: The Court agreed with the Munsif that mere acceptance by the Court of money into its custody after the date did not divest the petitioners of their rights under the decree. The money was held in safe custody pending the resolution of the right to deposit; this did not amount to an effective extension of the time fixed by the decree.
- Jurisdiction to extend time and precedents: The Court examined authorities (including Akkach Mondal and Kshetra Mohon Ghosh) which had been relied upon to show conflicting Divisional Bench views. The Court concluded there was no real conflict: Akkach Mondal turned on a factual circumstance (the plaintiff's objection not being seriously pressed) that allowed the trial judge to treat the case differently; Kshetra Mohon Ghosh explicitly held the Court had no jurisdiction to extend time fixed by a decree where the decree directed dismissal on failure. On balance the Court found no authority that would overturn the lower courts' factual finding here or justify extending the time fixed by the compromise decree.
- Application of equitable principles: The appellant’s reliance on the general equitable principle (as articulated in Jamshed Khodaram Irani) that specific performance may be granted despite failure to meet dates if justice can be done was acknowledged; however, the Court held that those general principles did not assist in overturning the lower courts’ factual finding that the parties intended time to be of the essence in the compromise which was made part of the decree.
- Conclusion of analysis: Because the courts below had reached a factual conclusion (that time was of the essence) supported by the recorded compromise and there was nothing before the appellate Court to show that finding was wrong, the appellate Court declined to disturb that conclusion. Hence the Court found no scope to grant the extension or to hold the decree executable in circumstances where the fixed date had passed without compliance.
Holding and Implications
APPEAL DISMISSED
Holding:
- The appeal by the decree-holder is dismissed with costs.
- Leave under clause 15 of the Letters Patent was sought and rejected.
Immediate implications for the parties:
- The concurrent decisions of the Munsif of Sealdah and the Subordinate Judge of Alipar stand: the courts below held that time was of the essence under the compromise decree and that the short delay did not permit execution of the decree by the decree-holder.
- The appellant (decree-holder) therefore failed to obtain an order permitting execution despite payment being made into Court on 21 March 1947.
- The Court emphasized that no further consideration of the factual question (whether time was of the essence) was permissible at this stage because the lower courts' factual finding is binding and had not been shown to be erroneous.
Broader legal implications:
The Court did not purport to lay down a new general rule of law. It applied established principles: that whether time is of the essence is a question of fact, that a compromise incorporated into a decree becomes part of the court's order, and that recorded findings of fact by courts of first instance are binding on appeal unless shown to be wrong. The decision therefore resolves the present dispute on its facts and does not establish a novel precedent beyond the application of those principles.
End of summary — based exclusively on the supplied opinion text.
1. This is an appeal by the decree-holder from concurrent decisions of a Munsif of Sealdah and Subordinate Judge of Alipar. The facts in brief are that the Courts below were dealing with an application under R. 47 of the CPC. The opposite party decree-holder filed a suit against the petitioners for specific performance of contract and the suit was decreed on compromise on 12th March 1947. It was part of the terms of compromise that the opposite party was to pay Rs. 250 to the petitioners on the same day, namely, 12th March 1947, and was to pay the remainder, namely, Rs. 76, within a week, that is, within 19th March 1947. It was agreed by the compromise that the petitioners would execute a deed of re conveyance if Rs. 75 was paid within 19th March 1947. The sum of Rs. 260 was paid on 12th March 1947 but the remainder, namely Rs. 76, was not paid until 21st March 1947. It is said 20th March, 1947 was a holiday. The opposite party decree-holder put the decree into execution as the petitioners refused to execute a deed of reconveyance. The petitioners filed their petition under R. 47 of the CPC, on the basis that the decree was not executable, the sum of Rs. 76 not having been paid within 19th March 1947. The opposite party opposed the application submitting that the delay of one day could be condoned. The question before the learned Munsif was “Is the decree executable?” The learned Munsif held that time was of the essence of the contract and that the delay could not be condoned. The argument was raised before him that the Court had accepted the deposit and that, therefore, the decree was executable, The learned Munsif rejected the argument holding that “by the mere acceptance of deposit by the Court the petitioner cannot be divested of his right.”
2. On appeal before the learned Subordinate Judge the matter was dealt with at somewhat greater length but with the same results. The learned Subordinate Judge refers to para. 4 of the compromise petition and observes that it “clearly provides that if the balance of Rs. 75 was not paid within 19th March the plaintiff could not execute the decree for specific performance.”
3. He held that time was of the essence of the agreement between the parties. The argument was also raised before the learned Subordinate Judge that the Court could extend the time for deposit under Section 148 of the CPC. The learned Subordinate Judge held that the Court was not entitled to extend the time fixed by the parties under the compromise decree. A decision of a Division Bench of this Court in the case of Akkach Mondal…Defendant, v. Aminuddi Mullik…Plaintiff, Opposite Party., 23 C.W.N 439 : (A.I.R (6) 1919 Cal. 68), was also placed before the learned Subordinate Judge but he held that the facts of that case were quite different from the facts of the present case and declined to follow what was done by the learned Judges in the case referred to.
4. In second appeal the matter has beer argued at somewhat greater length. Mr. M.N Ghosh for the appellant decree-holder submitted that two questions properly arose, firstly, whether the Court had jurisdiction to extend the time and secondly, if so, whether extension was permissible. The second point was taken up first. The learned Advocate drew my attention to the facts as stated above. He referred to Section 56 of the Contract Act, but all that concerns this Court in second appeal is that the question whether time is of the essence depends on the intention of the parties. The intention of the parties is a question of fact and this Court will be bound by the proceedings of the Courts below on the matter of fact. The learned Advocate placed before me the decision in the case of Jamshed Khodaram Irani v. Burjorji Dhunji bhai, 43 I.A 26 : (A.I.R (2) 1915 P.C 83). In that case their Lordships of the Judicial Committee held that Section 65 of the Contract Act, did not lay down any principle which differed from the law of England as to contracts for the sale of land. Their Lordships held that specific performance of such a contract will be granted in spite of the failure to keep the dates assigned by it, if justice can be done between the parties and if nothing in the express stipulations of the parties, the nature of the property, or the surrounding circumstances made it inequitable to grant relief:
“An intention to make time of the essence of the contract………may be inferred from what passed between the parties before, but not after, the contract is made.”
5. The facts of that case were that there was an agreement in writing with certain provisions and that the respondent subsequently purported to rescind the contract and forfeit the deposit. The in Lordships held that the contract did not make time of the essence of the contract and that the appellant was entitled to specific performance. The learned advocate for the appellant argue: that the facts in the present case are even more strongly in favour of his client than were the facts in the case before the Judicial Committee. In that case there was an agreement regarding earnest money followed by considerable delay whereas in the present case the decree-holder had paid most of the money and a small amount remained outstanding, in effect for one day, one of the two days during which it was outstanding being a day on which the Court was closed. He refers to a petition dated 13th August 1947, which states that the appellant thought that the term of the compromise was that he did not have to pay until the 19th had elapsed, that he tendered payment to the opposite party on 20th who refused it, so he went to Court on that day but found it closed and paid the amount into Court the next day. The learned Advocate also submitted that the amount having been received by the Court after hearing both parties, there had, in fact, been an extension of time, but this branch of the argument will be referred to later on. With regard to the case reported in Jamshed Khodaram Irani v. Burjorji Dhunjibhai, 43 I.A 26 : (A.I.R (2) 1915 P.C 83), Mr. Bholanath Roy for the respondents points out that the contract there was an ordinary contract whereas here the contract has been made part of the decree and that by the act of the parties. While he has no criticism of the observations of their Lordships regarding the nature of equitable jurisdiction and so on, he argues that the decision on the facts is of no help to the appellant in the present case. In my view, his argument is sound. The general principles governing the exercise of equitable jurisdiction in cases of contracts for the sale of land where there has been default in dates are not in substance in issue in the present case. What is in issue in the present case is whether the date fixed for the payment of the sum of Rs. 76 was or was not of the essence of the contract between the parties and as I have said, that is and must be a question of fact and the exposition of the general principles of equitable jurisdiction cannot be of assistance in deciding the question of fact.
6. The question of fact has been dealt with by the Courts below. As it appears from the order-sheet of the learned Munsif, no evidence was adduced by either side. It follows that the compromise as recorded by the Court was the only evidence and the Courts of fact have held that time was of the essence. They held so in a somewhat summary manner but nothing has been placed before me to show that they were wrong. Clearly they have followed the ordinary principle that the recording of the compromise in the decree made it part of the order of the Court and that where the Court has fixed a final Mate for final settlement by the act of one of the parties and the party concerned has not complied with the order of the Court by that date, there is an end of the matter.
7. On the foregoing view, the other arguments advanced can be dealt with briefly. The argument that there has, in fact, been an extension of time as the Court accepted the deposit on 21st after hearing the parties was dealt with on the proper lines by the Court of first instance. The learned Munsif rightly observes that mere acceptance of the deposit by the Court could not divest the petitioner of his right. Clearly, there was no decision as to the right to deposit or not to deposit. The money was merely held in the safe custody of the Court for the convenience off all concerned, pending and subject to decision as to the question of right. Whether the Court was competent to extend the time of deposit was argued on the basis of the decisions in the cases of Akkach Mondal…Defendant, v. Aminuddi Mullik…Plaintiff, Opposite Party., 23 C.W.N 439 : (A.I.R (6) 1919 Cal. 68) and Kshetra Mohon Ghosh v. Gour Mohan Kapali, 37 C.W.N 878 : (A.I.R (21) 1934 Cal. 21). Mr. Ghose submits that there were conflicting decisions of Divisional Benches of this Court. This is, however, not the case. In the former decision the defendant paid a part of a sum of money into Court and applied for enlargement of time to pay up the balance. The application was refused but the defendant paid the balance into Court after the expiry of the time limited. The learned Judge held that the objection taken by the plaintiff was not seriously pressed before him and observed:
“We think that on the would it would not be unjust to both parties that we should now extend the time to the payment of the balance……….”
8. It is true that the question whether the Court had jurisdiction to extend the time without the consent of the decree holder was argued before the learned Judges as appears from the notes of the arguments at page 440 of the Report, but the observation by the learned Judges that the objection taken by the plaintiff was not seriously pressed is final. In the latter case, a Division Bench held explicitly that
“where a certain time is fixed by a decree of Court for taking some steps and it directs that on failure of doing so within the time limited the case should stand dismissed, the Court has no jurisdiction to extend the time limited by the decree.”
9. Here, their Lordships considered certain decisions, including one of the Patna High Court taking a contrary view, and based their decision on the preponderance of the judicial authority in favour of the contention of the appellant. Thus, there is no conflict between the decisions of the two Divisional Benches of this Court.
10. Mr. Roy for the respondents was at some pains to traverse in detail the arguments advanced by Mr. Ghose, but on the view taken above there is no need to go into detail. The fact remains that the Courts below have come to a decision on the question of fact which is binding on this Court, namely, that the intention of the parties was that time should be of the essence. There is no scope for further consideration of this question at the present stage.
11. The result is that the appeal is dismissed with cost.
12. Leave under cl. 15, Letters Patent, was asked for and is rejected.
D.H
13. Appeal dismissed.
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