Adappa Bhau Magdum vs Shripal Savant Chinchawade

Kulkarni, J.—This is a revision by defendant-1 against the order dated 12-6-1984 passed by the Additional Civil Judge, Chikodi, in O.S. 8 of 1977 dismissing the application filed by defendant-under Section 148 CPC.

O.S. No. 8/77 has been filed by the plaintiff for specific performance of the agreement to sell and in the alternative for refund of the money paid as advance. The suit was decreed on 3-10-1983 in the following terms :

"The suit is partly allowed. The plaintiff is not entitled to the specific performance of the contract as prayed for. Defendant-1 shall pay to the plaintiff Rs. 20,000/- together with future interest thereon at 9% per annum from the date of the suit till realisation of the amount and also the proportionate costs of the suit provided that if defendant-1 pays to the plaintiff Rs. 11.200/-on or before 31-5-1984, the plaintiff shall accept the said amount of Rs. 11.200/- in full satisfaction of the suit claim and the entire decree shall be treated as fully satisfied."

Defendant-1 filed an application u/s 148 on 31-5-1984 seeking time to pay the money of Rs. 11,200/- as mentioned in the decree.

It was resisted by the plaintiff.

The Trial Court dismissed the application filed by defendant-1 u/s 148 CPC. Therefore the revision by defendant-1.

Section 148 of the C.P.C. reads as :

"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."

Thus it becomes clear that this Section applies only where time is fixed for doing an act prescribed or allowed by this Code. "Code" includes rules, and prescribed means "prescribed" by the Rule. The learned author Sri Mulla in the Code of Civil Procedure, 14th Edition at page 771 has stated as :

"It has been held in L. P. Jain v. Nandakumar A.B. 254, 63 Bom. L.R. 48, that when the defendant applied under Order 9 Rule 13, for setting aside an exparte decree, he was not doing any act prescribed or allowed by the Code, and that accordingly, the period specified in the order for doing any act cannot be extended under this section."

The learned author Sri Mulla has further stated at page 772 as :

"It was held by the Allahabad High Court in Sarabjan v. Ram Bahal (1913) 35 All. 582, that a Court has no power under this section to extend the time fixed by its decree under Order 20 Rule 14, for payment of purchase money in a suit for pre-emption. The Allahabad decision has been approved by the Madras High Court in (1916) 39 Mad. 876, and the Oudh Chief Court in Abdul Rahman v. Banke Behari (1934) 9 Luck. 215, (34) A.O. 17."

The learned author has further stated as :

"Again, if the effect of the order is that in the event of non-compliance, it operates automatically and without further intervention of the Court, the section cannot be applied, either because the order operates as a decree or because there is no previous order current on which the order extending time can operate. Thus, it the order is that security shall be given within a mouth "otherwise the petition shall stand dismissed", S.S. Balakrishna Iyer and Another Vs. Parvathammal and Another, or extra Court fee shall be paid within a week "otherwise the suit shall stand dismissed" or "the appeal shall stand dismissed" or the decree shall be a nullity, or the decretal amount be paid within ten clays, otherwise the application shall stand dismissed, or that the application to set aside an exparte decree "will stand dismissed" if costs were not paid within a specified time or that if the balance purchase money was not paid within a given time the "suit shall stand dismissed" or that an amendment application should stand dismissed if costs are not paid within a particular date, no extension can be granted. Similarly, where a decree is passed on condition that if payment of a certain sum is made by a specified time, the suit would be decreed and that in default it would be dismissed, the Court after expiry of that time loses seisin over the suit and cannot extend the time."

Here, in this case, the Court has initially passed the decree for Rs. 20,000/- subject to the condition that if defendant-1 pays Rs. 11,200/- by 31-5-1984 it shall be taken as full satisfaction of the decree itself. Therefore, if defendant-1 does not pay or did not pay Rs. 11,200/- on or before 31-5-1984, nothing more was required to be done by the Court, it automatically on account of the failure to pay Rs. 11,200/- by 31-5-1984, the plaintiff shall be entitled to get Rs. 20,000/-. Therefore, the intervention of the Court was not required at all in the present case. Therefore, the Trial Court held that Section 148 did not apply. Section 148 would coma into play only if the Court has fixed or granted the time for doing of any act prescribed or allowed by this Code. Reading of the decree would show that the condition imposed is not the one prescribed or allowed by the Code. It is only meant to give some relief to defendant-1 if he abided by the condition, that is, payment of a particular sum by 31-5-1984. Therefore, under these circumstances, the Trial Court rightly dismissed the application.

There is no substance in the revision It is accordingly dismissed.