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Andhra High Court · body

2022 DIGILAW 600 (AP)

C. Ramana v. Bandaru Vijaya Lakshmi

2022-07-04

BATTU DEVANAND

body2022
ORDER : 1. This Civil Revision Petition has been filed aggrieved by the order, dated 17.11.2017 in I.A. No. 371 of 2010 in O.S. No. 21 of 2007 on the file of the Senior Civil Judge, Kadiri. 2. Heard the learned counsel for the petitioners and the learned counsel for the respondent. Perused the record. 3. The Petitioners are the plaintiffs and the Respondent is defendant is the suit in O.S. No. 21 of 2017 on the file of the Senior Civil Judge, Kadiri. 4. The petitioners filed the suit for specific performance of contract against the respondent. The said suit was decreed in favour of the petitioners on 31.05.2010 with a direction to deposit the balance of sale consideration of Rs. 2,50,000/- with interest at 12% per annum from 08.02.2007 within two months from the date of decree and judgment, dated 31.03.2010. But, the petitioners could not deposit the said amount. 5. The petitioners filed a petition in I.A. No. 371 of 2010 in O.S. No. 21 of 2007 seeking to extend the time from 30.05.2010 to 21.10.2010 to deposit the balance of sale consideration. The respondent resisted the request of the petitioners by filing counter. The learned Senior Civil Judge, Kadiri on consideration of the material available on record, dismissed the said application by order, dated 17.11.12017. Aggrieved by the said order, the present Civil Revision Petition has been filed. 6. The learned counsel for the petitioners submits that the extension of time is a discretionary power of the court as contemplated under Section 28 of Specific Relief Act and as such, the Court below ought to have extended the time in depositing the amount by exercising the discretionary power, as there is no inordinate delay on the part of the petitioners. The learned counsel further submits that the Court below erred in not considering the bona-fides of the petitioners, as the petitioners filed demand drafts 8 in number along with a Memo in C.F. No. 2916 of 2010, dated 22.10.2010. The learned counsel also brought to the notice of the Court that the 2nd Appeal filed by the respondent in S.A. No. 732 of 2012 is pending. 7. The learned counsel for the respondent contends that the petitioners are not entitled for grant of delay of 144 days in depositing the amount as per the decree and judgment, dated 31.03.2010. The learned counsel also brought to the notice of the Court that the 2nd Appeal filed by the respondent in S.A. No. 732 of 2012 is pending. 7. The learned counsel for the respondent contends that the petitioners are not entitled for grant of delay of 144 days in depositing the amount as per the decree and judgment, dated 31.03.2010. He further submits that if the petitioners interested to deposit the amount in Court, he should have filed petition for extension of time in depositing the amount into the Court on or before 30.05.2010 (i.e.) stipulated time and sought to dismiss the Civil Revision Petition. 8. The learned counsel for the petitioners relied the following decisions to support the contention of the petitioners: (1) Yeshoda vs. K. Nagarajan, 1996 (9) LAWS (SC) 29 (2) Mandavilli Sujatha vs. Bartam Vykuntarao and Others, 2000 (1) ALD 237 (3) K. Balaraj vs. B. Mallaiah @ Mallesh, 1996 (2) ALT 170 9. The learned counsel for the respondent also relief the following decisions to support the contentions of the respondent: (1) Ali Jaffar vs. V. Venkata Reddy, 2012 (3) ALT 202 (2) P. Ravi Prasad Goud vs. P. Krishna and Others, 2010 (6) ALT 197 10. We have carefully considered the submissions of the both the learned counsels appearing for the petitioners and the respondent and perused the record. 11. This Court in Mandavilli Sujatha’s case (supra) had dealt with the identical issue allowed the Civil Revision Petition and held at Para Nos. 12 and 13 as extracted herein-under: “12. In fact, Section 28 of the Specific Relief Act specifically mentions about the decree holder depositing the balance of sale consideration within the period prescribed under the decree or such further period as the Court may allow. 13. Thus, it is apparent that the learned Judge erred in holding that he had no power to consider the application for extension of time for payment of balance of sale consideration beyond the period stipulated under the decree. It is obvious that the learned senior Judge failed to exercise the jurisdiction vested in him under Section 148 of the CPC and under Sec. 28 of the Specific Relief Act.” 12. In K. Balaraj’s case (supra) held at Para No. 11 as extracted herein-under: “11. It is obvious that the learned senior Judge failed to exercise the jurisdiction vested in him under Section 148 of the CPC and under Sec. 28 of the Specific Relief Act.” 12. In K. Balaraj’s case (supra) held at Para No. 11 as extracted herein-under: “11. No doubt, the learned Judges while holding as above referred to Nagura Appa's case (supra) with great respect, I am unable to agree with the view expressed by the learned Judges. As pointed out in the earlier paragraphs, the case of suit for pre-emption is governed by Order 20 Rule 14, which provides for the consequences to follow if the condition imposed to deposit any amount is not complied with. There is a statutory bar on toe Courts to extend the time limit imposed. Whereas, in the case of suit for specific performance, no provision similar to Order 20 Rule 14 is made. Therefore, there is no statutory bar barring the Courts from extending the time limit imposed for the performance of the contract fixed by the Trial Court. Further, Section 28 of the Specific Relief Act 1963 says “such further period as the Court may allow” thereby empowering the Courts to extend the period for deposit of the amount specified. However, there cannot be any doubt that such extension should be within reasonable limits as the discretion is to be exercised judiciously and not capriciously.” 13. The Hon’ble Apex Court in Yeshoda’s case (supra) held at Para No. 2 as extracted herein-under: 2. It is contended by Mr. Mahale, learned counsel for the petitioners, that after the expiry of the time prescribed by the court, the petitioner has a right to seek rescission of the decree for specific performance for non-compliance. The court, therefore, has no power to enlarge the time. We find no force in the contention. Section 148 Civil Procedure Code gives power to the court to enlarge the time for complying with the orders of the court from time to time. Under those circumstances, the court has correctly exercised the discretion since the amount case to be deposited within three months from the date of dismissal of the application under Section 28. 14. This Court carefully have gone through the judgments cited by the learned counsel for the respondent. Under those circumstances, the court has correctly exercised the discretion since the amount case to be deposited within three months from the date of dismissal of the application under Section 28. 14. This Court carefully have gone through the judgments cited by the learned counsel for the respondent. Though, there is no any dispute with regard to the opinion expressed in the said judgments, in the considered opinion of this Court, the findings recorded in the said judgments are not applicable to the facts and circumstances of the present case. 15. In Ali Jaffar’s case (supra) the petitioner filed an application seeking condonation of delay of 1417 days. The petitioner therein filed the suit 21 years after entering into the agreement of sale. Considering those facts, the Civil Revision Petition was dismissed. But, in the present case, there is no such inordinate delay. 16. In P. Ravi Prasad Goud’s case (supra) also the facts are varying with the present case. As such, in our view, the said judgments are of no help to the respondent. 17. On careful perusal of the rulings cited by the learned counsel for the petitioners as extracted above, this Court is of the opinion that the learned Senior Civil Judge, Kadiri erred in dismissing the petition filed by the petitioners without extending the time as sought by them. The learned Senior Civil Judge, Kadiri ought to have exercise the jurisdiction vested in him under Section 148 of the Civil Procedure Code and under Section 28 of the Specific Relief Act. 18. In the present case, it is further to be noted that the petitioners to prove their willingness and readiness filed demand drafts 8 in number along with a Memo in C.F. No. 2916 of 2010, dated 22.10.2010. The said demand drafts are part of the record in the court of the Senior Civil Judge, Kadiri. It appears from the order assailed in this Revision Petition there is no any mention about the demand drafts placed before it. As such, this Court has no hesitation to come to a conclusion that the learned Senior Civil Judge, Kadiri failed to consider the bona-fides of the petitioners. 19. Considering all these aspects, in the result, we have no hesitation to hold that the order under revision deserves to be set aside and accordingly it is set aside. 20. As such, this Court has no hesitation to come to a conclusion that the learned Senior Civil Judge, Kadiri failed to consider the bona-fides of the petitioners. 19. Considering all these aspects, in the result, we have no hesitation to hold that the order under revision deserves to be set aside and accordingly it is set aside. 20. Considering the facts and circumstances of the case, the petitioners are granted time for depositing the balance of sale consideration within 30 days from the date of receipt of this order. 21. With the above direction, the Civil Revision Petition is allowed. 22. There shall be no order as to costs. 23. As a sequel, miscellaneous petitions, if any, pending in this petition shall stand closed.