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Andhra High Court · body

2001 DIGILAW 1001 (AP)

Laxman B. Dolwani v. B. Surender Goud

2001-09-07

P.S.NARAYANA

body2001
( 1 ) THE revision petitioner is the petitioner plaintiff in I. A. No. 747 1991 in O. S. No. 82/1983 on the file of Additional Chief judge (Temporary) City Civil Court, hyderabad. ( 2 ) THE revision petitioner had filed the present CRP aggrieved by the order of the learned Additional Chief Judge (Temporary), City Civil Court, Hyderabad dismissing IA. No. 747 of 1991 in OS. No. 82 of 1983 by order dated 30-10-1991. The said application was filed by the revision petitioner under Sections 148 and 151 C. P. C requesting the Court to extend time for depositing a sum of Rs. 1,25,000/-, the balance of sale consideration. The revision petitioner had instituted the suit referred to supra for the relief of the specific performance of agreement of sale in respect of the plaint schedule property and ultimately the suit was decreed on the 2nd day of August, 1991. The revision petitioner was directed to deposit the balance of sale consideration of Rs. 1,85,000/- into the court within the one month from 2nd day of August, 1991. But, however, an amount of Rs. 60,000/- was deposited on 30-8-1991. It was stated in the affidavit filed in support of the application that he was unable to deposit the remaining sum of Rs. 1,25,000/- within the time granted since he had invested huge amounts for purchase of agricultural lands and the development thereafter anticipating that it would take some more time for the final disposal of the suit and hence in the light of the above circumstances a request was made for extension of time to deposit Rs. 1,25,000/- by two more months. The said application was dismissed for default and the application was restored as per orders in i. A. No. 753/91 and ultimately I. A. No. 747 of 1991 in OS. No. 82 of 1983 also was dismissed by an order dated 30-10-1991 without giving any reasons. Aggrieved by the same the present CRP is filed. ( 3 ) SRI R. Kondaiah, learned Counsel representing the revision petitioner had made elaborate submissions relating to the power of the Court to extend time and though such power is available the Court below had erroneously dismissed the application. The learned Counsel also had brought to may notice that the balance amount was deposited on 23-9-1991 and in substance the decree was complied with. The learned Counsel also had brought to may notice that the balance amount was deposited on 23-9-1991 and in substance the decree was complied with. The learned Counsel also had stated that there is no default clause incorporated in the decree and even if such default clause had been incorporated, the Court is not powerless to extend time under Section 148 read with Section 151 C. P. C. The learned counsel had drawn my attention to the decree in OS. No. 82 of 1983 and also Sec. 28 of the Specific Relief Act, 1963. The learned counsel had placed reliance on Manika gounder v, Samikanu, M/s. Prime Promoters pvt. Ltd, v. Aroop Kumar Chatterjee, chithambaran v. Viswambaran and mandavilli Sujatha v. Vykunta Rao. ( 4 ) AS can be seen from the decree there is no default clause in the decree. It is no doubt contended by the learned Counsel for the revision petitioner that even if such default clause has been incorporated in the decree, the Court is not powerless to extend time. In the present case, since such default clause is not there in the decree this question does not arise. ( 5 ) IN Sujatha v. Vykunta Rao (4 supra) while dealing with Section 28 of the Specific relief Act, 1963 and Section 148 of the Code of Civil Procedure relating to enlargement of time, it was held that the Court is not powerless to extend time for payment of balance of sale consideration beyond the period stipulated under the decree in spite of default clause in the decree. In fact, section 28 of the Specific Relief Act, 1963 clearly specifies about the plaintiff/ decreeholder, depositing the balance of sale consideration within the period prescribed in the decree or such further period as the court may allow in this regard. The same view was expressed relating to the power of the Court to extend time for making deposit of the balance of sale consideration in a suit for specific performance in Manika Gounder (1 supra) and M/s. Prime Promoters Pvt. Ltd. (2 supra) also. The same view was expressed relating to the power of the Court to extend time for making deposit of the balance of sale consideration in a suit for specific performance in Manika Gounder (1 supra) and M/s. Prime Promoters Pvt. Ltd. (2 supra) also. In Chidambaran (3 supra) it was held that the mere failure to deposit amounts as directed in a decree for specific performance could not render the decree ineffective and when the judgment-debtor had not resorted to the rights under Sec. 28 of the Specific Relief Act seeking recession of contract, Court is empowered under section 28 of the Specific Relief Act, 1963 to grant extension of time to deposit purchase price even in the absence of written application of the decreeholder. In fact, even the Apex Court had taken the same view in Ramankutty Guptan v. Avara, sandhya Rani v. Sudha Rani. ( 6 ) THE learned Counsel Sri Vijay Prakash representing the respondents had contended that the power to extend time is only discretionary and the Court below when exercises such power in one way or the other in exercise of such discretionary jurisdiction, the revision Court cannot interfere under Section 115 C. P. C. ( 7 ) AFTER thoroughly going through the material available on record. I am of the considered opinion that the Court below had totally erred in dismissing the application seeking extension of time especially by making a cryptic order even without application of mind. Thus, the court below had failed to exercise the jurisdiction vested in it under Section 148 c. P. C. read with Section 28 of the Specific relief Act, 1963. ( 8 ) THUS, in the light of the foregoing discussion, and also in the light of the fact that already the remaining sale consideration also was deposited by the revision petitioner, it will be just to extend time as prayed for in I. A. No. 747 of 1991 in os. No. 82 of 1983 on the file of Additional chief Judge (Temporary) City Civil Court, hyderabad. ( 9 ) FOR the reasons recorded above, the impugned order dated 30-10-1991 made in i. A. NO. 747 of 1991 in O. S. No. 82 of 1983 on the file of Additional Chief Judge (Temporary) City Civil Court, Hyderabad is hereby set aside and the C. R. P. is allowed. ( 9 ) FOR the reasons recorded above, the impugned order dated 30-10-1991 made in i. A. NO. 747 of 1991 in O. S. No. 82 of 1983 on the file of Additional Chief Judge (Temporary) City Civil Court, Hyderabad is hereby set aside and the C. R. P. is allowed. But, in the circumstances of the case, no order as to costs.