Padmini Ammal vs Indian Bank and S.K. Ramamurthy

P. Sathasivam, J.—The Judgment Debtor-1 in O.S.No.121 of 1991 on the file of the Principal Subordinate Judge, Villupuram is the revision

petitioner. She filed the above revision against the dismissal of her application filed u/s 148 of the CPC (In short ""C.P.C.""). The petition filed under

Order 21 Rule 90, came up for hearing before the Court below on 23.08.2001 and she made an endorsement to the effect that she agrees to

deposit the amount due under the auction before 24.09.2001, failing which her application may be dismissed. Since she could not deposit the

amount before 24.09.2001, she filed an application on 25.09.2001, for extension of time u/s 148 of C.P.C. and also a petition under Order 34

Rule 5 of C.P.C. for deposit of the amount. The learned Subordinate Judge, after dismissing her application filed under Order 21 Rule 90 of

C.P.C. rejected the said application on 28.09.2001, hence, the present revision.

Heard the learned counsel for the petitioner as well as the second respondent.

The petitioner herein who is a Judgment Debtor No.1 has filed a petition under Order 21 Rule 90 of C.P.C. to set aside the sale. In that petition

she made an endorsement on 23.08.2001, praying for one month time for paying the entire amount. As per the said endorsement, the petitioner /

Judgment Debtor No.1 agreed to pay the entire decree amount on or before 24.09.2001, failing which the application can be dismissed without

further enquiry. Though she could not pay the entire amount before 24.09.2001, she filed the present application on 25.09.2001 i.e., next day u/s

148 of C.P.C. praying for an order to extend the time in E.A.No.477 of 1999 by one day. Among the respondents, the auction purchaser - the

respondent therein opposed the said application on the ground that she filed the application on 25.09.2001, that is after expiry of the last date,

namely 24.09.2001, the Court has no power to consider the same. The said objection was accepted by the learned Subordinate Judge and

dismissed the application of the Judgment Debtor No.1, even without numbering the same.

In order to appreciate the question raised, it is useful to refer Section 148 of C.P.C., which reads as under.

Enlargement of time. - 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.

Here, in our case, the learned counsel appearing for second respondent vehemently contended that in view of the fact that the petitioner herself

agreed to pay the amount before 24.09.2001 and based on her endorsement and in the light her default in non-complying with the same within the

time prescribed, the Court below is justified in dismissing her petition even without numbering the same. After going through Section 148 of

C.P.C., I am unable to appreciate his contention. Here, it is to be noted that on the next day she filed a petition along with the required amount for

extension of one day and the reason for non-compliance is that she could not arrange for funds which exceeded Rs.1,90,000.00.

Now, I shall consider various decisions referred to by either side. Mrs. Krishnaveni, learned counsel appearing for the petitioner has very much

relied on the decision of Sathiadev, J., in the case of G. Rangaraju Chettiar Vs. Meenakshi Ammal and Others, In that case, the learned Judge has

held that even in the case of compromise decree the Executing Court could in a proper case and to further the ends of justice extend u/s 148

C.P.C. the time for payment fixed in the decree. The learned Judge further held that the contract between the parties get merged in the order of the

Court by passing a compromise decree and the Court thereafter had the freedom to act to further the ends of justice, such freedom could not be

curtailed by pleading that the Executing Court could not rewrite the contract entered into by the parties or that it could not go back on the decree.

The reason for delay was due to the formalities to be complied with for raising the loan from the Insurance Company. After accepting the said

reason and after referring various earlier decisions of this Court and the Supreme Court, the learned Judge has held that it was a proper case for

extending the time by invoking Section 148 of C.P.C.

The other decision referred to by the learned counsel for the petitioner is the case of Mangala Ghosh Vs. Rabindra Nath Hazra, In similar

circumstance and while interpreting Section 148 of C.P.C., the learned single Judge of the Calcutta High Court has held that, Court had ample

powers to grant extension even without consent of either party.

It is also useful to refer the decision of this Court in the case of Pakkiammal Vs. Anaiappan, V. Kanagaraj,J., in that decision has held that,

...... There is no denying of the fact that regarding enlargement of time, Section 148 confers ample discretionary powers and Section 151 also

speaks of the inherent powers conferred on Courts to make any order that is necessary for the ends of justice or to prevent abuse of the process

of the court. What is relevant at this juncture is, in such matters, neither Section 148 nor Section 151, CPC should be read in isolation of the other.

On the contrary, both these sections should be read along with when the result could be easily arrived at in the circumstance as one that is made in

the case in hand. The lower court should have easily allowed the petition filed on the part of the petitioner seeking extension of time. On the

contrary, expecting a very strict standard of proof, it has dismissed the petition which is not correct.

On the other hand, even if circumstances favour a little for allowing such a petition, if the parties come forward to realise the fault and seek for

extension of time to comply with the order, courts are expected to be liberal in conceding such requests made on the part of the parties on

imposition of cost on the petitioner. In the case in hand, it is only a delay of five days that had occurred and the court could have taken a lenient

view and in exercise of its powers conferred by law, such as, Sections 148 and 151 CPC, the lower court should have allowed the petitioner filed

by the petitioner.

Considering the factual position in our case, though the petitioner agreed to pay the entire decree amount before 24.09.2001, in view of the fact

that the amount is more than Rs.1,90,000.00 and she was able to collect the amount only on the next day i.e., on 25.09.2001, she filed a petition

for extension of one day on the same day. As stated earlier, it is only a delay of one day that had occurred and the learned Subordinate Judge

could have taken lenient view in exercise of its power conferred by law, namely Sections 148 and 151 of C.P.C.

Mr. V. Raghavachari, learned counsel appearing for the second respondent in support of his defence has very much relied on the case of

Kuppurajammal Vs. Meenakshi Amnmal and Others, . The learned Judge relying on the case of P.K. Sukumaran Vs. Sulaiman Khan, , after

holding that the Court which passed that order will become functus officio and as therefore no jurisdiction to enlarge the time. In the light of Section

148 of C.P.C. and in view of the reason given in the affidavit filed in support of the application to extend the time by one day, I am of the view that

the said decision is not helpful to his case.

He further relied on the case of Bhagwat Narain Singh and Another Vs. Srinivas, . After going through the factual details in that case, I am of the

view that the same is not applicable to our case.

He also relied on the case of M.N. Subramania Mudaliar and Others Vs. Shanmugham Chettiar and Others, In that case, Venkataraman,J.,

has held that, in a compromise decree where time is of the essence of the contract, the Court has no jurisdiction to extend the time. That is not the

position in our case, hence this decision is also not helpful to the respondents case.

Mr. V. Raghavachari, learned counsel for the second respondent also relied on the case of Hukamchand Vs. Bansilal and Others, . Though the

said decision supports the claim made by the respondents, in the light of the facts and circumstances of the case, I am of the view that it is also not

helpful to the respondents case. The principal question that arises for decision in the case before the Supreme Court is, whether the Execution

Court was right in the view that it could not extend time which had been given by consent of parties on October 7, 1958. After referring Order

XXXIV Rule 5 of C.P.C. the Supreme Court has held that all that it does is to permit the mortgagor judgment-debtor to deposit the amount

before confirmation of sale. It does not give any right to the mortgagor judgment-debtor to ask for postponement of confirmation of sale in order to

enable him to deposit the amount. The other factual details are, on November, 20, 1958, an application was made by the respondents praying that

they might be given one day more as November 21, 1958 was holiday. No order was passed on that date, but it is remarkable that no money was

deposited on November 20, 1958. When the matter came up before the court on November 22, 1958 no money was deposited even on that day.

Now under Order XXXIV, Rule 5 it was open to the respondents to deposit the entire amount on November 22, 1958 before the sale was

confirmed, but no such deposit was made on November, 22, 1958. On the other hand, counsel for the respondents prayed to the executing court

for extension of time by 14 days. The executing court refused that holding that time upto November 21, 1958 had been granted by consent and it

was no longer open to it to extend that time. The executing court has not referred to Order XXI, Rule 92 in its order, but it is obvious that the

executing court held that it could not grant time in the absence of an agreement between the parties, because Order XXI, Rule 92 required that as

the application under Order XXI, R.90 had been dismissed the sale must be confirmed. In such circumstance, the Court held that,

it was not open to the executing court to extend time without consent of parties, for time between October 7, 1958 to November 21, 1958 was

granted by consent of parties. Section 148 of the CPC would not apply in these circumstances, and the executing court was right in holding that it

could not extend time. Thereafter it rightly confirmed the sale as required under Order XXI,Rule 92 there being no question of the application of

Order XXXIV, Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of

the matter, we are of the opinion that the order of the executing court refusing grant of time and confirming the sale was correct.

On facts, I am of the view that the said reasoning is not applicable to the respondents.

He also relied on the case of Bethanna Nadar Vs. M. Srinivasan and Others, wherein the learned Judge of this Court has held that, an essential

term of the agreement embodied in the decree cannot be changed by an act of the court on the application of one of the parties, but the consent of

both parties to the original agreement would be necessary for its modification. Since it is a consent decree and the same was granted by consent of

both parties and compromise decree was entered into, the same cannot be altered on the basis of the request of one of the parties. Hence, the said

decision is distinguishable to the case on hand.

The last decision referred to by the learned counsel for the second respondent is the case of the Mooriantakath Ammoo Vs. Matathankandy

Vatakkayil Pokkan, . Here again, the matter relates to compromise decree. As said in the earlier case, after passing of compromise decree based

on the consent of both parties, the Court has no power to vary the terms on the basis of the application of one of the parties.

In the light of the above discussion, though the petitioner herself agreed to pay the decree amount before 24.09.2001 and in view of the fact

that she managed to pay the entire amount on the next day along with proper application for extension of time, in the absence of compromise

decree as mentioned in the cases cited by Mr. V. Raghavachari, I am of the view that the contrary conclusion arrived at by the learned

Subordinate Judge cannot be sustained. The learned Judge ought to have numbered the Execution Application and decided the matter on merits.

Accepting the circumstances pleaded by the learned counsel for the petitioner herein, which go to show that it is the appropriate case wherein, in

spite of taking genuine steps, to comply with the condition relating to payment, the time limit could not be adhered to, because of factors beyond

their control, I am of the view that the Court below ought to have extended the time by one day by taking into account the circumstances pleaded

by her.

In the result, the revision petition succeeds and the same is allowed. No costs. The learned subordinate Judge is directed to number the un-

numbered Execution Application, namely, E.A. Nil of 2001 in O.S.No.121 of 1991 filed by the petitioner and dispose of the same on merits and

in accordance with law, expeditiously. Consequently, connected CMP., is closed.