Ramachandra Chettiar vs Kandasami Pillai

Rajagopalan, J.—In a preliminary decree in a suit for partition the decree of the trial Court provided,

that the plaintiff be entitled to a half share in the plaint A schedule items 1 to 5 described hereunder on payment into Court within six months from

this date Rs. 1,102-5-0 with interest thereon at six per cent, per annum from the date of plaint, that is, 15th September, 1943, till payment.

The amount was not paid within the period of six months from the date of the decree of the trial Court. There was an appeal against that decree

and that appeal was finally disposed of on 28th June, 1946. Within six months of the date of the appellate decree the plaintiff deposited the amount

into Court, and applied in LA. No. 386 of 1946 for permission to deposit the amount due under the preliminary decree which was confirmed on

appeal into Court and the learned Subordinate Judge granted a week''s time from the date of the Order, 8th January, 1947. That Order, the first

defendant, petitioner, seeks to set aside in revision.

The main contention of the petitioner wat that the Court had no jurisdiction to extend the time fixed in the decree, that is, six months from the

date of the preliminary decree of the trial Court. The learned advocate for the petitioner relied on the decisions in Mohideen Kuppai v. Ponnusami

Pillai (1915) 3 L.W. 29. and Gopala Iyer v. Sannasi (1914) I L.W. 882..Both these decisions were considered in Abdul Shaker Sahib v. Abdul

Rahiman Sahib (1922) 44 M.L.J. 107 : ILR 46 Mad.148 by a Division Bench consisting of Schwabe, C.J. and Wallace, J. All these decisions

again were considered in Mahomadalli Sahib v. Abdul Khadir Saheb (1927) 59 M.L.J. 351. It should be unnecessary to go at great length into the

same question. The basis of the decision in Abdul Shaker Sahib v. Abdul Rahiman Sahib (1922) 44 M.L.J. 107 : ILR 46 Mad.148 appears to me

to be the observation of Schwabe, C.J., at page 155:

As long as this form of decree is understood to be of a preliminary, nature and the Court still retains full power over the action, I do not see any

particular harm in the continuance of its use.

In Mahommadalli Sahib v. Abdul Khadir Saheb (1927) 59 M.L.J. 351. Jackson, J., said with reference to the observations of Schwabe, G.J.:

This with all respect lays down an eminently sensible rule of procedure...and there is no ruling really to the contrary.

Thiruvenkatachariar, J., referred to the scope of Section 35 of the Specific Relief Act. Even with reference to that, the conclusion finally reached

by the learned Judge was that so long as the Court retained its power u/s 35 (c) of the Specific Relief Act to rescind the contract the Court had

power to extend the time originally granted by it, obviously because the suit was still pending before the Court. That brings it exactly within the

scope of the principle laid down by Idumba Parayan and Others Vs. Pethi Reddi and Others, is directly in point. There the learned Judges held

that where a decree in a suit for partition provided inter alia that the plaintiffs could recover certain properties from the alienees on payment of a

sum of money into Court by a certain date without any provision as to the effect of non-payment and the plaintiff paid the money on a subsequent

date the Court had jurisdiction to extend time for payment. The learned Judges observed that the decree was in terms and in effect one for

redemption and the Court had jurisdiction to extend the time under Order 34, Rule 8, Civil Procedure Code. Should an alternative basis be

needed for the jurisdiction of the Court to extend time for payment that should be found in Order 34, Rule 8. But even without that, on the basis of

the principles laid down in Abdul Shaker Sahib v. Abdul Rahiman Saheb1, the Court obviously, had jurisdiction to extend time.

No question really arises whether the learned Subordinate Judge did exercise this discretion aright in granting time prayed for by the plaintiffs.

Obviously such a question could not really arise in revision. The petition is dismissed with costs.