1. The petitioner is the decree holder in a suit for specific performance. The respondent/defendant filed a memo at Annexure-D is as follows:
“It is ordered and decreed that the suit is decreed in view of the memo filed by the counsel for the defendant. The plaintiff is hereby directed to deposit the balance sale consideration, of Rs. 33,60,000-00 in the court through Demand Draft within one month from the date of decree and the defendant shall execute a regular registered Deed in favour of the Plaintiff within, three months. If the Plaintiff failed to deposit the said sum within one month from the date of decree, it will he assumed that the suit, is dismissed,”
2. The amount was not deposited in time. The court by order dated 17.03.2007 has extended time for deposit by two months. The time extended tailed within the summer vacation, period. The petitioner on the re-opening day i.e, on 28.05.2007 filed a memo for issue of R.O for deposit of the amount. The R.O is issued and the amount, is deposited on 29.05.2007
3. The petitioner filed execution case on 17.03.2008, The defendant in the meantime on 20.6.2007 has sold the property to one Sri. Rajesh under a registered sale deed. It was argued before the Executing court that the trial court, which has passed the decree issued the R.O and time for performance. The executing court dismissed the execution case on the ground that it is beyond the jurisdiction, of the executing court to consider the contention.
4. The petitioner aggrieved by the said order filed W.P No. 13541/2008. This Court permitted the petitioner to move the court, which, has passed the decree. The petitioner filed an. application under section 1.48 of CPC for extension. of time. The court rejected the application on the ground that the request is belated. The petitioner aggrieved by the said order has filed this writ, petition.
5. Learned counsel for the petitioner relied upon the decision of the Supreme Court in (1998) 9 SCC 108 : AIR 1997 SC 1995 in Md. Alimuddin v. Waizuddin, wherein in para-2 the following observations are made;
“… while extending the time mentioned that it is at the risk of the plaintiff but having exercised the discretion and allowed the respondents to deposit the balance consideration of Rs. 500/- it amount to that the Court has extended the time. The respondents have complied with the original direction contained in the decree of July 7, 1982. The courts below therefore, have rightly exercised the discretion, in extending the time for compliance.”
6. It is the contention, of the petitioner that when, once the R.O is issued and amount deposited is accepted, there would be a deemed extension, of time for performance, therefore, the dismissal of application, for extension, under sec. 148 of CPC is bad in law.
7. On a plain reading of the facts in the cited case, the decision has no application to the facts on hand. In the instant, case, intricate questions of law would arise for consideration.; since in the memo dated 21.05.2007 there is no mention of fact about the lapse of time for deposit, there is no notice to the other side while tiling a. memo for deposit. The provisions of sub-section (6) of Section 28 of Civil Courts act declares that during the vacation all the civil courts are deemed to be closed for the purpose of section 4 of the Limitation Act. Even assuming that the petitioner could not have deposited during vacation, it was incumbent upon him to deposit the amount immediately on the reopening day. In the context of facts, the following questions would arise for consideration;-
(i) Whether the amount deposited on 29.5.2007 mounts to a deemed extension of time and a valid deposit,
(ii) Whether one Rajesh who has purchased the property is a notified purchaser?
(iii) Whether the petitioner is entitled to extension of time when third party interest is created?
(iv) Whether the suit stood dismissed on 28,5.2007 or earlier when the amount was not deposited in terms of the decree?
8. These are the questions that have to he gone into and to he answered by the court, which has passed the decree. Accordingly the order is set aside, the matter is remitted to the trial court for disposal in accordance with law.