Moulvi Nazeeruddin vs Ram Devi

Sambasiva Rao

The question which arises in the Civil Revision Petition is whether the Court can amend u/s 152, Civil Procedure Code, the judgment and decree granting specify the time before which the specific performance should be completed. The material facts are : The respondent filed the suit on the foot of an agreement of sale for specific performance. It was decreed on 12th February, 1971 saying that on the payment of Rs. 15,000 the defendant should execute the reconveneyance document in favour of the plaintiff. It, however, omitted to fix the time before which such amount should be paid and the reconveyance deed should be executed. So, the defendant filed a petition out of which the present revision arises, to amend the judgment and decree under sections 152 and 151 to rectify the defect as it arose out of an accidental slip or omission. It is well known that time for payment and the execution of the document are generally fixed in judgments and decrees for specific performance. The omission to do so in this case is clearly an accidental slip or omission coming within the meaning of section 152. The lower Court however, stated that the judgment and decree are in accordance with the pleadings and it was for the plaintiff to choose to execute the decree. The decree can be executed within the time stipulated for execution of the decree. In view of section 48 of the Civil Procedure Code, the execution can drag on for 12 years. If the view of the lower Court is right what would be the result ? Though a decree for specific performance has been passed, the positions of the parties are left in a very vague, indefinite, and nebulous condition. The defendant is now bound to execuse conveyance deed and will have to wait for the sweet will and pleasure of the plaintiff for paying the amount and calling upon him to execute the document which he may do not any time within 12 years. True, he will have to keep it alive once in three years. Such could never be the intention of judgment and decree for specific performance. The very expression specific performance indicates that the performance of an agreement should be specific. Without the time fixed for its performance, the decree ceases to be specific. So, omission to fix the date for performance would be defeating the very decree and making it nugatory. Omission to mention the times for payment and execution is clearly an accidental slip or omission on the part of the Court.

In any case, in view of the grave injustice that will be caused to both the parties, it is a fit case where the power of the Court u/s 151, Civil Procedure Code, can be properly exercised. In Sreerama Chengolrayanaidu v. Ramaiah and another (1961) 2 An. W. R. 54. Venkatrama Sastry, J, took the view that the Court has jurisdiction u/s 151, CPC to fix a date subsequently for performance of the contract by the plaintiff, though the application was filed u/s 152, Civil Procedure Code.

Sri Kameswara Rao appearing for the plaintiff respondent relies on Ram Krishna v. Mukand Shanker AIR 1263 All. 49. That case has no application because, what the learned Judge held was that a decree cannot be said to be not executable on the ground that there was no provision as to when sale price was to be paid or whether it was to be paid prior to execution of the sale deed. At the same time the decree provided that the defendant should execute the sale deed within 30 days. The learned Judge in those circumstances held that the decree was executable. That has no application to the present case. As I have said, to hold otherwise would be defeating the very decree for specific performance and to cause grave injustice to the parties. I, therefore, set aside the order of the lower Court and grant the application of the defendant-petitioner for amendment and fix the date for deposit of the amount by the plaintiff decreed against him into Court as one month from today,, i.e., 23rd or February, 1975 and also the costs for reconveyance and the time for the defendant to execute the reconveyance deed as on or before 7th March, 1975. In the result, the revision petition is allowed with costs.