S.P. Arthanari Mudaliar and 4 others vs A. Ponnusami and 2 others

K.M. Natarajan, J.—This appeal is directed by defendants 1 to 5 against the order passed by the Additional Sub-Judge, Salem, in R.E.P. No. 226 of 1986 in O.S. No. 546 of 1984. The facts which are necessary for the disposal of the appeal are briefly as follows:--The as first respondent herein filed a suit in the Additional Sub Court, Salem, against appellants 1 to 5 (defendants 1 to 5) and respondents 2 and 3 (defendants 6 and 7) for the relief of specific performance on the basis of an agreement of sale. After contest, the court passed a decree on 4-8-1986 in favour of the first respondent herein and directed the defendants to receive the balance of Rs. 5,30,275 and execute a sale within two months and if they failed to do so the sale deed would be executed by court. The defendants were also directed to pay the costs of the suit to the plaintiff. The first respondent issued a notice through his lawyer on 18.9.1986 calling upon the defendants to fix a date and appoint a time for execution of the sale deed on or before 3.10.1986 so as to enable the plaintiff to get read at the Sub Registrar''s Office to take the sale with required stamp papers and balance of sale price, within a week of the receipt of the said notice. The first defendant, who is the first appellant herein, sent a reply dated 26.9.1986 wherein it is stated that the time fixed for execution of the sale deed will also be applicable to the plaintiff and that so far no deposit of the sale price was made into court and that in the absence of depositing the balance of the sale price in Court, the above said notice is not maintainable. Further, strict compliance of the decree dated 4.8.1986 is warranted or else the claim would be void. The plaintiff filed execution petition on 6.10.1986 in R.A.P. No. 226 of 1986 under O. 21, R. 34 CPC directing the defendants to execute the sale deed in favour of the plaintiff and in default to execute the sale by court. The said petition was opposed by the first defendant, who is the first appellant herein, in his counter, wherein it is stated that the decree is not framed in accordance with the provisions of O. 20, R. 12-A, C.P.C., specifying the period within which the payment should be made. As such, there is an omission in the decree regarding the deposit of the purchase money and the period within which the payment should be made by the plaintiff and hence the decree cannot be operated in the absence of such operative portion. Further, the executing court has no jurisdiction to entertain the decree in the absence of deposit of the sale consideration. There is absolutely nothing to show in the affidavit filed by the decree-holder whether the purchase money has been deposited or not. Since the purchase money has not been deposited prior to the filing of the execution petition, the execution petition is liable to be dismissed. The learned Sub Judge passed an one line order as follows: "For deposit of balance of sale consideration--24.3.1987." Aggrieved by the same, this appeal is filed.

The learned counsel for the appellants, Mr. K. Doraisami, submitted that even though the decree directed the defendants to execute a sale deed within two months from the date of the decree after receipt of the balance of sale consideration, the present execution petition, filed without deposit (sic) g the amount even after the reply notice wherein it is reiterated, is not maintainable. Further, the executing court has no power to grant time for deposit of the balance of the sale consideration and the same has to be done only by filing necessary application before the court which passed the decree in the suit side and that it cannot be done in execution side under O. 21, R. 34, C.P.C. Further, the order passed by the court below is not a speaking one and the learned Subordinate Judge has not at all considered the objections raised by the first appellant as to the maintainability of the execution petition and the power of the executing court to extend the time for deposit of the balance of sale consideration. On the other hand, the learned counsel for the first respondent submits that the decree passed on 4.8.19(sic) 6 is only a preliminary decree and that the court has got ample power to extend time and that in this case though the amount was not deposited already, subsequent to the passing of the impugned order by the learned Subordinate Judge, the amount was now deposited on 23.3.1987, as directed by the executing court.

The question to be considered is whether the order passed by the executing court permitting the plaintiff to deposit the balance of sale consideration on a fixed date is correct, when the original decree does not provide for deposit of the balance of sale consideration. At the outset, it has to be mentioned that it is highly regrettable that the learned Additional Sub Judge has passed the one line order which is a non-speaking one and which is not permitted and there is absolutely nothing to show that the learned Sub Judge has considered the contentions raised by the parties in passing the said order. The learned Sub Judge has forgotten that it is an appealable one. Thus the impugned order is liable to be set aside on that ground alone.

Next, we have to see the scope of the executing court to grant such a relief when the deposit of the balance of the sale consideration was not made within a time of two months within which the defendants were directed to execute the sale deed after receiving the balance of sale consideration. In the instant case, even though there is no specific provision directing the plaintiff to deposit the balance of purchase money within two months, yet it is seen that there is a provision in the decree directing the defendants to execute the sale deed after receiving the balance of Rs. (sic),30,275. To a notice issued by the plaintiff on 18.9.1986, the first defendant has categorically stated that the period mentioned therein equally applies to the plaintiff also for depositing the balance of sale consideration within the said time and without depositing the said amount it is not open to the plaintiff to call upon the defendants to execute the safe deed and the plaintiff was put on notice that he is bound to deposit the balance of sale consideration. But admittedly, the plaintiff has not deposited the amount even after the said reply received and also before ever he filed the execution petition. Only in the execution petition, the court granted time for payment of the sale consideration by 24.3.1987.

In this connection, the learned counsel for the appellants, Mr. Doraisami, drew my attention to the decision reported in Resham Singh v. Manmohan Singh AIR 1985 Punjab & Haryana 193, where the earlier decision of this Court in K. Saraswathi v. P.S.S. Somasundaram Chettiar 90 L.W. 454 (D.B.--Ismail, J.) = 1977-II M.L.J. 68, and the appeal against the said judgment which is reported in K. Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar, , and other decisions of other High Courts were considered. That was also a case where in a suit for specific performance of agreement to sell, a conditional decree was passed in favour of the plaintiffs. According to the decree, a sum of Rs. 50,500 was to be paid within one month, failing which the plaintiff''s suit was to stand dismissed. No appeal was filed by either party against the said decree of the trial court which had become final between the parties. Admittedly, the plaintiffs did not deposit the amount of the decree within the time allowed. They sought execution of the decree by filing an application. The decree holder also filed an application under Ss. 148 and 151, C.P.C., for extending time for depositing the sale price and condoning the delay for depositing the same. In the circumstances, it was held:--

Held, that the executing Court could not execute the decree as the amount was not deposited within the time allowed according to the terms of the decree, the suit stood dismissed automatically. The extension of the time for depositing the sale price would be varying the decree of the trial Court which could not be done as the Court has become functus officio after passing the said decree.

My attention was also drawn to the decision of this Court reported in Vaiyapuri Reddy and Another Vs. Sivalinga Reddiar, where Alagiriswami, J., (as he then was) had an occasion to consider a similar case where the decree did not provide the period within which the plaintiff should pay the consideration of the sale price, but only provided that the defendant should execute the sale deed and in the event of failure, the sale deed would be executed by court and registered. The defendant filed an application under S. 28 of the Specific Relief Act for rescinding the contract and in the said application, the plaintiff filed a counter don tending that he is always ready and willing to performance his part of the contract and pay the purchase money and take reconveyance. The learned Judge relied on the earlier Bench decision of this Court in Abdul Shaker Sahib Vs. Abdul Rahiman Sahib and Another, where it was held that a decree for specific performance is in the nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders therein including, in appropriate cases, the extension of the time and that the contract is not determined by mere failure of the plaintiff to pay the amount within the specified time. It was also held in the said decision that it is in the nature of a preliminary decree and not a final decree. The learned Judge in that case also relied on the earlier decision of the Supreme Court in Gomathinayagam Pillai and Others Vs. Pallaniswami Nadar, , wherein it was held that if the contract relates to a sale of immovable property, it would normally be presumed that time was not the essence of the contract. The Court finally upheld the order passed by the court in the original side which granted 30 days for depositing in view of S. 28 of the Specific Relief Act. That is not the case here. As discussed already, in the above quoted case, a petition was filed before the court which passed the decree for rescinding the contract under S. 28 of the Specific Relief Act and that the court instead of rescinding the contract extended time and that was upheld.

Applying the ratio laid down in the above decision, it cannot be said that the executing court has got power to extend time for depositing the balance of sale consideration. Further, it is brought to my notice that in view of O. 20, R. 12-A, C.P.C., the Court should have specified the period within which the payment should be made. In the instant case the Additional Sub Judge who passed the decree has not specified the time. Hence the proper course open to the plaintiff is to apply to the said court for making provision in the decree for fixing the time within which the payment should be made. That should be done only by filing necessary application before the court which passed the decree and not by way of execution. S. 28 of the Specific Relief Act deals with rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed. Even under S. 28(1) of the Specific Relief Act, the court is empowered to grant further time to the purchaser to pay the sale price. That it is only in the preliminary decree and not in the final decree is also reiterated in K. Kalpana Saraswathi Vs. P.S.S. Somasundaram Chettiar, , while dealing with the judgment of this Court in K. Saraswathi v. P.S.S. Somasundaram Chettiar 90 L.W. 454 (D.B.--Ismail, J.)=1977.II M.L.J. 68. The Supreme Court observed that the condition that the suit will be dismissed on non-payment of the sale price within the prescribed time, could not be imposed in the light of the provisions of S. 28 of the Specific Relief Act as the proper course in that situation was to pass a decree for specific performance which would, for all practical purposes, be a preliminary decree. The suit would continue and be under the control of the Court until appropriate motion was made by either party for passing a final decree. It is further held in para 4 of the judgment:

It is perfectly open to (he Court in control of a suit for specific performance to extend the time for deposit, and this Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour.

The above decision laid down that the decree already passed is only a preliminary decree and that it is open to either party to apply for passing final decree in pursuance of the same and it is open to the court which passed the decree to extend time, so also the appellate court; but not the executing court as is done in this case. The decision relied on by the learned counsel for the appellants had gone to the extend of saying that to extend the time for depositing the sale price will be varying the decree of the trial Court which could not be done as the Court has become functus officio after passing the said decree.

In the light of the principles laid down in the decisions quoted above, since the plaintiff has not deposited the amount within two months time mentioned in the decree for the defendants to execute the sale deed, the proper course for the plaintiff would be to approach the court which passed the decree for extending the time for deposit, and after making such deposit to file execution petition. But, the order passed by the executing court permitting the plaintiff to deposit the amount long after the period expired is without jurisdiction and it is liable to be set aside on that ground also. Further, as already stated, the court below had not at all adverted its mind to the merits and demerits of the contentions raised by both parties and passed a speaking order. But on the other hand the court below passed a one line order which reads: "For deposit of balance of sale consideration--24-3-1987." Such attitude of the lower court is to be deprecated. On the said ground also, the order is liable to be reversed. For all these reasons, the appeal is allowed and the order passed by the court below is set aside. In the circumstances, of the case, there will be no order as to costs. It is open to the first respondent (plaintiff) to take necessary steps before the court which passed the decree regarding deposit of the sale price in pursuance of the decree passed by the said court in the light of the observations made in this judgment.

Note: The office is directed to communicate this judgment to the concerned judge also who passed the impugned order, so that he would not repeat the same mistake in future, and also putting on his notice that if such thing is repeated, serious note will be taken by this Court as similar instances have already been brought to the notice of this Court previously The Sub Judge is directed to be informed that in future he should follow the procedure laid down under O. 20, R. 12-A, C.P.C. by specifying time for deposit of purchase money by the plaintiff in case a decree for specific performance of agreement for sale is passed.