Mandavilli Sujatha vs Baratam Vykuntarao and others

Heard both sides.

This revision petition is directed against the order of the Additional Senior Civil Judge, Srikakulam dated 18-8-1999 passed in un-numbered 1A filed in OS No.110 of 1996.

The learned Counsel for both sides agreed that the petition may be heard and disposed of on merits at the admission stage.

Curiously the IA in which the impugned order is passed does not seem to have been numbered in the Court below. It is difficult to appreciate why it was not numbered.

The petitioner herein is the plaintiff decree holder in OS No. 110 of 1996. A decree in his favour was passed for specific performance of contract of sale of certain property. The decree provided that the plaintiff-decree holder shall pay the balance of sale consideration of Rs.1,60,000/-within a period of 15 days and thereupon the defendant-judgment debtors shall execute the registered sale deed within a month.

It appears that the decretal-holder (Plaintiff) was unable to deposit the balance of sale consideration of Rs. 1,60,000/- as directed under the decree and he accordingly filed the said IA for extension of time on 10-8-1999 i.e., within 15 days of the date of decree, for payment of balance of sale consideration.

After hearing both sides, the learned senior Judge dismissed the application on the ground that the Court had no power to enlarge time inasmuch as the decree was self-operative. The relevant clause in the decree may be extracted below:

"3. That in the case the plaintiff refuses to deposit the same into the Court with a notice to defendants the decree of specific performance as claimed in clause No.(1) shall stand to cancel."

The learned Judge, it appears, held that he has no power to extend the time inasmuch as the decree provides that in the event of failure of plaintiff to deposit the amount within the prescribed time, the decree for specific performance as granted shall stand cancelled.

The learned Judge seems to have relied upon a judgment of this High Court in the case of P.V. Chalapathi v. T. Sava Reddy 1989 (2) ALT 629. In the said case, the learned single Judge of this Court held that suit for specific performance of agreement of sale, will stand dismissed in case there is default deposit of balance of sale consideration within the time provided under the decree. It was held that the decree being self-operative, the suit should automatically be dismissed and the application made for extension of time for depositing the amount cannot be considered by the Court and the Court had no power to grant extension fo such time.

The learned Counsel for the petitioner points out that his view must be held to be no longer good law in view of the judgment of the Supreme Court in the case of Yeshoda and Another Vs. K. Nagarajan, . In that case, it has been categorically held that the Court had power u/s 148 of Cr.PC to enlarge the time for payment of balance of sale consideration after the expiry of the time stipulated under the decree. In view of this judgment of the Supreme Court, the view taken by the learned single Judge of this Court referred to above with great respect, must be held to be no longer good law.

The learned Counsel for the petitioner points out that the Supreme Court has taken such a view consistently in number of previous decisions also. He cites two judgments of the Supreme Court reported in the case of Ramankutty Guptan Vs. Avara, , and also in the case of Smt. Sandhya Rani Sarkar Vs. Smt. Sudha Rani Debi and Others, .

In fact, Section 28 of the Specific Relief Act specifically mentions about the decree holder depositing the balance of sale consideration within the period prescribed under the decree or such further period as the Court may allow.

Thus, it is apparent that the learned Judge erred in holding that he had no power to consider the application for extension of time for payment of balance of sale consideration beyond the period stipulated under the decree. It is obvious that the learned senior Judge failed to exercise the jurisdiction vested in him u/s 148 of the CPC and u/s 28 of the Specific Relief Act.

In the result, there can be no hesitation in holding that the order under revision deserves to be set aside and accordingly it is set aside.

Considering the circumstances of the case, the learned senior Judge ought to have allowed the petition for extension of time. Thus, this petition shall be deemed to have been allowed and the petitioner-decree holder is granted time for depositing the balance of sale consideration within 45 days from the date of this order.

With the above direction, the revision petition is allowed. No costs.