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2008 DIGILAW 90 (KAR)

Onkarappa Chandappa Biradar v. Dhareppa

2008-02-07

A.S.PACHHAPURE

body2008
ORDER Pachhapure, J. The petition is filed challenging the Order at Annexure-”A”, rejecting the application filed by the petitioner under Section 148 r/w. Section 151 C.P.C. 2. The facts relevant for the purpose of this petition are as under: The petitioner is the plaintiff in O.S. No.335/1989 and sought for specific performance of the contract of sale against the respondent. The suit came to be decreed by the Judgment and Decree dated 05.04.1993. Aggrieved by the Decree of the specific performance, the respondent brought an appeal in R.A. No.42/1993 which came to be dismissed by the Judgment and Order dated 11.09.1995. The perusal of the Decree reveals that the petitioner was granted the Decree for specific performance subject to deposit of the balance sale consideration of Rs.9,100-00, within one month from the date of the Decree. The time granted by the Trial Court was also confirmed by the Appellate Court in R.A. No.42/1993. The petitioner did not deposit the amount of Rs.9,100-00 as ordered in the suit. It is therefore, the petitioner approached the Trial Court by filing a Civil Miscellaneous No. 1812002 under Section 148 r/w. 151 C.P.C. and requested for extension of time to deposit the amount of Rs.9,100-00. The Trial Court after hearing the respective counsel has rejected the application. Aggrieved by the same, the petition has been. filed. 3. The learned counsel for the petitioner contends that under the provisions of Section 148 C.P.C., the Courts have a discretion to extend the time fixed for payment or deposit under any Decree. The provisions of Section 148 C.P.C. reads as under: “148. 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 not exceeding thirty days in total, even though the period originally fixed or granted may have expired.” 4. As could be seen from the provisions, the question regarding the extension of time arises in case if any time is fixed or granted by the Court for doing of any act prescribed or allowed by the Code. So, as regards the applicability of this provision, it is relevant to note that the extension of time is only when the period is prescribed or allowed by the Civil Procedure Code. So, as regards the applicability of this provision, it is relevant to note that the extension of time is only when the period is prescribed or allowed by the Civil Procedure Code. The learned counsel contends that in a suit for specific performance of the contract, the provisions of the Specific Relief Act gives discretion to the Courts for fixing time for payment of the sale consideration. In that view of the matter, he submits that the extension of time can be granted by the Court under Section 148 C.P.C. 5. The facts reveal that the petitioner approached the Court for specific performance of the contract by filing the suit and it came to be decreed in his favour directing to deposit the balance sale consideration, within one month from the date of the Decree. He had an opportunity to deposit the amount. He did not avail the said opportunity and approached the Appellate Court. The Appellate Court dismissed his request and confirmed the Decree of the Trial Court. He could have sought extension of time by the Appellate Court. He did not do so, thereby the Decree and the terms of the Decree has become final and the Trial Court or this Court cannot sit in appeal and modify the decree. In case, if the time is extended, it would be exercising the powers of the Court in a suit, which has been confirmed by the Appellate Court by dismissing the appeal. It would be encroaching the authority of the Appellate Court and granting the extension of time to the petitioner to deposit the money. The time to deposit the sale consideration is neither prescribed in the Code nor any other Law. It is the discretion, which was exercised by the Court while trying the suit and that discretion exercised and the finding given has been confirmed by the Appellate Court. In that view of the matter, in my considered opinion, the provisions of Section 148 C.P.C. do not apply to the facts on hand. The Trial Court has taken consideration of these facts and circumstances, rejected the request of the petitioner on the ground that there are no bonafides on the part of the petitioner in seeking the extension of time. The Trial Court has taken consideration of these facts and circumstances, rejected the request of the petitioner on the ground that there are no bonafides on the part of the petitioner in seeking the extension of time. Taking into consideration the facts and circumstances and the provisions of Section 148 C.P.C., I am of the opinion that the petition before the Trial Court was not maintainable and the Trial Court was right in rejecting the application. I do not find any ground to grant any relief. The petition is devoid of merits and it is dismissed accordingly.