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1995 DIGILAW 501 (PAT)

Vidya Sagar Rai v. Ram Lagan Thakur

1995-09-07

RAM NANDAN PRASAD

body1995
Judgment 1. This application in revision is directed against the order dated 31.1.1994 passed in Title Suit No.25 ot 1992 whereby the court refused to extend the time for deposit of the balance of the consideration money. 2. The relevant facts of the case are that the petitioner filed the above mentioned suit tor specific performance of contract the suit was decreed on 27.8.1993 with and specific direction to deposit the balance of the consideration money within a period of one month failing which the suit would stand dismissed. The petitioner filed an application for certified copy of the judgment on 28.9.1993. The same was ready orn 17.12.1993 and on the same day it was handed over to the petitioner. Or 18.12.1993 the petitioner filed an applicatiorr tor extension of time stating therein that he had no knowledge with regard to payment of the balance of the consideration money within a month and he knew about the aforesaid condition after obtaining the certified copy of the judgment on 17.12.1993. The court by the impugned order dismissed the said petition for extension of time for deposit of the balance of the consideration money on the ground that the court has become functus officio. 3. Learned counsel for the petitioner submitted that rejection of the petition on the ground that the court has become functus officio is erroneous in law. Learned counsel for the opposite party however, contended that the decree was conditional. On failure to deposit the balance of the consideration money, the suit was to be dismissed and hence the court is justified in rejecting the petition of the petitioner for extension of time. 4. On consideration of the submissions made by the parties, it is manifest that the suit was decreed with a condition that the balance of the consideration money be paid within a period of one month failing which the suit would stand dismissed. The consideration money was not deposited in time on the ground that the petitioner had no knowledge with respect to the conditional decree. He knew about the same on 17.12.1993 after obtaining the certified copy of the judgment and on the next day a petition for extension of time was filed. The court rejected the petition of the petitioner on the ground that the court has become functus officio. 5. He knew about the same on 17.12.1993 after obtaining the certified copy of the judgment and on the next day a petition for extension of time was filed. The court rejected the petition of the petitioner on the ground that the court has become functus officio. 5. In the case of Ramankutty Guptan vs. Avara (A. I. R.1994 S. C.1699) the Apex court on consideration of section 28 of the specific Relief Act has held that in default of payment of balance of the consideration money the court does not become functus officio. When a decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, section 28 (1) of the said Act itself gives power to the court to extend the time on such terms as the court may allow to pay the purchase money or other sum which the court has ordered him to pay. However, learned counsel for the opposite party relied upon a decision in the case of bhujangrao Ganpati vs. Sheshrao rajaram (A. I. R.1974 Bombay 104) wherein it has been held that the decree which provides that the suit is to stand dismissed if payment is not made within the time fixed, is a self operative final decree. Provisions of section 28 of the Specific Relief Act do not apply to such a decree. Failure on the part of the party to carry out the terms of the decree automatically results in dismissal of the suit. The court becomes functus officio and has no power to grant extension of time fixed by the decree. 6. From the discussions made above it appears to me that the decision relied upon by the learned counsel for the opposite party is against the law laid down by the supreme Court in Ramankuttys case (supra ). Furthermore, section 28 of the specific Relief Act itself provides for extension of time. Thus, it cannot be held that the court after passing the decree becomes functus ofticio. The court has committed error of law in dismissing the petition of the petitioner by the impugned order. 7. Furthermore, section 28 of the specific Relief Act itself provides for extension of time. Thus, it cannot be held that the court after passing the decree becomes functus ofticio. The court has committed error of law in dismissing the petition of the petitioner by the impugned order. 7. Accordingly, this application is allowed and the order impugned is hereby set aside subject to payment of cost of Rs.750/- The cost and the balance of the consideration money must be paid to the opposite party or deposited by 14th of november, 1995 failing which the order would stand non est.