Akeel Ahmed vs Bachchu

Bela M. Trivedi, J.—The present revision petition has been filed under Sec. 115 of CPC by the petitioner-decree holder, challenging the order dt. 07.08.2004 passed by the Civil Judge (S.D.) Dholpur (hereinafter referred to as "the trial Court") in Civil Misc. Application No. 18/2002, whereby the trial Court has dismissed the application filed by the petitioner under Sec. 28 of Specific Relief Act (hereinafter referred to as "the said Act") read with Section 148 of CPC. The short facts giving rise to the present petition are that the petitioner had filed the suit being No. 187/1993 seeking specific performance of the agreement allegedly executed by the respondents-defendants in favour of the petitioner. The said suit was decreed exparte against the respondent No. 1-defendant No. 1 vide the judgment & decree dt. 07.10.1993. The said decree was sought to be set-aside by the respondents by moving an application before the trial Court, however the said application was dismissed vide the order dt. 04.12.1996. Being aggrieved by the said order, the respondents had also filed the misc. appeal in the Court of Additional District Judge, Dholpur, however the said appeal was also dismissed vide the order dt. 18.08.2001. The petitioner-decree holder thereafter submitted an application under Sec. 28 of the said Act read with Section 148 of CPC on 04.02.2002 seeking extension of time for depositing the amount as directed in the decree. The said application has been dismissed by the trial Court vide the impugned order, against which the present revision petition has been filed.

The learned counsel Mr. Deepak Sharma for the petitioner submitted that the petitioner did not pay the amount to the respondents within 6 months of the decree as the respondents had filed the application seeking setting-aside of the said decree, and the said application having been dismissed by the trial Court, he had preferred the appeal, and that after the dismissal of the said appeal, the application for extension of time was made by the petitioner. According to him, no time limit was fixed in the decree for depositing of the amount in the Court, if the respondent No. 1 refused to accept the amount, and therefore the Court should have extended the time limit, considering the facts and circumstances of the case. Learned counsel Mr. Sharma has relied upon the decision of Patna High Court in case of Tribeni Tewary and Others Vs. Ramratan Nonia and Others, , and the decision of the Andhra Pradesh High Court in case of Sajja Chimpiraiah Vs. Gaddam Venkata Subbaiah and Others, , to submit that it is the discretion of the Court to extend the time limit under Sec. 28 of the said Act. He has submitted that the trial Court having not exercised the discretion judiciously, the impugned order deserves to be set-aside.

However, the learned counsel Mr. Dinesh Kumar Garg, for the respondents submitted that there was no stay against the execution of the decree, pending the application for setting aside of the decree, and pending the appeal before the appellate Court, and therefore the petitioner was required to deposit the amount either with the respondent No. 1 or in the Court within 6 months of the decree, and that having not been done for about 8 years, the trial Court has rightly rejected the application of the petitioner. Mr. Garg has relied upon the decision of the Apex Court in case of Chanda (dead) through LRs. Vs. Rattni and Another, , to submit that the impugned order passed by the trial Court being discretionary in nature, this Court should not interfere with the same.

In order to appreciate the rival contentions raised by the learned counsels for the parties, it would be necessary to reproduce the operative part of the decree passed in the suit, which reads as under:--

As per the undisputed facts, the application for setting aside the decree in question at the instance of the respondents-defendants was dismissed by the trial Court on 04.12.1996, and the misc. appeal filed against the said order was also dismissed by the appellate Court on 18.08.2001. It is not disputed that during the pendency of the said application as well as the appeal, the execution of the decree in question was not stayed by either of the Courts. Though, it was sought to be submitted by the learned counsel Mr. Deepak Sharma for the petitioner that the respondent No. 1 had refused to accept the amount, though offered to him by the petitioner, the said submission has been disputed by the learned counsel Mr. Garg for the respondents by submitting that the petitioner had never offered any amount to the respondent No. 1, and the petitioner had failed to deposit the amount in the Court within 6 months, as directed in the decree. From the bare reading of the said decree, it clearly transpires that the petitioner-decree holder had to pay the amount of Rs. 35,000/- to the respondent No. 1 within 6 months of the decree, and that if the respondent No. 1 refused to accept the said amount, the petitioner had to deposit the same in the Court within 6 months thereafter. The undisputed fact is that the petitioner had neither deposited the said amount as directed in the decree, nor at the time of making the application under Sec. 28 of the said Act nor has he deposited the said amount till this date. The decree being very specific, it could not be said that the trial Court had not fixed the time limit for depositing the amount in the Court, as sought to be submitted by the learned counsel for the petitioner.

So far as the settled legal position is concerned, the decree would become executable in case of specific performance of the contract, only when the decree holder deposits the amount as per the decree. If the decree holder fails to comply with the terms of the decree, such decree would be inexecutable and the decree holder who has not fulfilled the terms of the decree would not have any right to get the decree executed. In the instant case, the application for extension of time to deposit the amount was made by the petitioner under Sec. 28 of the said Act read with Section 148 of CPC. As per Section 148, the Court can extend the time limit from time to time but not exceeding 30 days, even though the period originally fixed may have expired. Since the petitioner had filed the application seeking extension after the expiry of about 8 years of the decree, Section 148 would not be applicable. So far as the Section 28 of the said Act is concerned, the Apex Court in case of Chanda (dead) Through LR''s v. Rattni Devi and Anr., (supra), has observed in Para 10, which reads as under:- 10. The decree for specific performance has been described as a preliminary decree. The power under Sec. 28 of the Act is discretionary and the Court cannot ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time even though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary.

In the instant case the decree holder having not taken any step to deposit the amount as per the direction given in the decree nor having filed any application seeking extension of time within reasonable period, the trial Court has rightly dismissed the said application. The impugned order being discretionary in nature, this Court is not inclined to interfere with the said order, which even otherwise is just and proper. The revision petition being devoid of merits, is dismissed.