Hari S/O Ramji vs Mahadu S/O Kerba Tekale Died ...
2006 Latest Caselaw 597 Bom

JUDGMENT

S.B. Deshmukh, J.

1. This Second Appeal No. 244 of 1985 is directed against the judgment and decree passed in Regular Civil Appeal No. 389 of 1983 by the learned District Judge, Nanded on 29th October, 1985. Learned District Judge, Nanded held that due to failure of the plaintiff to deposit the balance amount of the sale consideration within the time stipulated by the trial Court, the suit, after the expiry of the given period automatically, stood dismissed. The learned District Judge, Nanded further held that the appeal thus, became infructuous and is, therefore, disposed of accordingly, in the light of the matter, without disturbing the judgment and decree of the trial Court.

2. The facts, in short, may be summarised, as follows:

(a) The appellant, in the second appeal, was the plaintiff in Regular Civil Suit No. 270 of 1982 and one Mr. Mahadu S/o Kerba was the defendant in the suit. Defendant Mahadu Kerba died during the pendency of second appeal, in this Court, and his legal heirs have been brought on record. The legal heirs of deceased Mahadu/original defendant, are respondents in the second appeal. The parties, hereinafter, are referred to their status in Regular Civil Suit No. 270 of 1982, for convenience.

(b) The plaintiff had filed suit for specific performance of contract and perpetual injunction, in respect of land Gat No. 136, admeasuring 4 Acres 20 Gunthas, situated at village Dabhad, Taluka and District Nanded, against the defendant. After recording evidence, in the suit, the learned 2nd Joint Civil Judge, Junior Division, Nanded decreed the suit by the judgment and decree passed on 28th October, 1983. The trial Court, in the operative part of the judgment - Clause (I), ordered that the plaintiff should deposit the remaining amount of consideration Rs. 6,100/- within three months from the date of the order and after depositing the money, the defendant should execute the sale-deed in respect of the suit property. In Clause (II) the trial Court ordered that, in case of failure on the part of the plaintiff to deposit the amount, as per the order Clause (I), within stipulated time. the suit of specific performance of contract shall automatically stand dismissed. In Clause (III) the trial Court directed the plaintiff and defendant to bear equal expenses of registration of the sale deed. In case of failure, on the part of the defendant to share the expenses, the plaintiff was conferred every right to recover the same from the defendant. By Clause (IV), the defendant was directed to execute the sale deed in respect of suit filed, within a month and in case of failure, on the part of the defendant, it was directed to be executed through Court. As per Clause (V), the plaintiff was permitted to recover the notice charges of Rs. 35/- from the defendant. Clause (VI) and (VII) of the operative part of the judgment/decree, the trial Court restrained the defendant from causing obstruction in peaceful possession of the suit field of the plaintiff. By Clause (VII), the defendant was to pay entire costs of the suit to the plaintiff and was further directed to bear his own costs.

(c) Regular Civil Appeal No. 389 of 1983 was filed by the original defendant deceased Mahadu on 7th December, 1983, being aggrieved by the judgment and decree passed by the trial Court in Regular Civil Suit No. 270 of 1982. The plaintiff Hari filed an application at Exhibit-10 in Regular Civil Appeal No. 389 of 1983 on 9th February, 1984. In this application, Exhibit-10, it was contended by the plaintiff that his elder brother was suffering from sickness. The entire family of the plaintiff and his brother was reeling under the sickness of his brother. The plaintiff, therefore, could not deposit the balance of the consideration amount, to the tune of Rs. 6,100/- in pursuance of the decree passed by the trial Court in Regular Civil Suit No. 270 of 1982. The plaintiff, by the application Exhibit-10, sought extension of 12-13 days time, since said deposit was delayed by that time. Ultimately, prayer was made seeking permission of the first Appellate Court for depositing the amount of Rs. 6,100/-in pursuance of the decree passed by the 2nd Joint Civil Judge, Junior Division, on 28th October, 1983, by extending the time. The learned District Judge, Nanded, on 29th October, 1985, passed an order that in the light of the matter, appeal became infructuous. The learned District Judge, Nanded, after hearing the parties, as noted above, disposed of Regular Civil Appeal No. 389 of 1983. The learned District Judge, Nanded had framed eight points for determination. The point No. 1 was in respect of the alleged agreement to sale dated 16th September, 1978 in favour of the plaintiff, by the defendant for the consideration of Rs. 8,100/- and payment of Rs. 2,000/- as advance by the plaintiff to the defendant. The finding is recorded in favour of the plaintiff. The finding regarding possession of the plaintiff, as claimed by the plaintiff on the basis of contract for sale, is also recorded by the first Appellate Court, in favour of the plaintiff, while considering Point No. 2, for the same. The readiness and willingness of the plaintiff was, the point No. 3, framed by the learned District Judge, Nanded. Finding on this point also is in favour of the plaintiff. Point No. 4 was in respect of breach of contract by the defendant and the finding is in favour of the plaintiff. Learned District Judge has also recorded finding on point No. 5 regarding alleged threat by the defendant, in relation to possession of the plaintiff and the finding is in favour of the plaintiff. Point No. 6, framed by the first Appellate Court, is reproduced hereinbelow:

(6) Whether the failure of the plaintiff respondent to deposit the unpaid sale price of Rs. 6,100 in Court within the stipulated period, renders the Court as functus officio, for the reason that by virtue of the default committed by the plaintiff respondent, in depositing the amount within the given time, the suit stood dismissed automatically.

The finding, on this point No. 6, is recorded by the first Appellate Court, in the affirmative and against the plaintiff. Point No. 7 was in respect of the need for reversal of the judgment and decree passed by the trial Court. Finding of the first Appellate Court is "does not arise as the appeal became infructuous". Thus, the first Appellate Court has recorded finding on Point Nos. 1 to 5 in favour of the plaintiff. In other words, the finding recorded by the trial Court on all the issues, in favour of the plaintiff, is concurred and confirmed by the first Appellate Court, while deciding/disposing of Regular Civil Appeal No. 389 of 1983. The finding on point No. 6 is against the plaintiff and that is incorporated in paragraph No. 10 of the judgment.

(d) The first Appellate Court has observed in para No. 10 of the judgment that "the trial Court has taken into account all the pros and cons of the matter and has rightly come to the conclusion that the claim succeeds. It is difficult to say that the decree was wrongly granted against the plaintiff/respondent that although he had succeeded in obtaining the decree in his favour, he failed to deposit the balance amount within the stipulated period and thereby got his suit, automatically dismissed after the expiry of the stipulated period. Eventually, the appeal becomes infructuous, and will have to be disposed of without disturbing the judgment and decree of the trial Court, inasmuch as the suit of the plaintiff-respondent stands dismissed." In view of these observations, in para 10, as noted above, the application filed by the plaintiff at Exhibit-10, is rejected by the order passed on 29th October, 1985, i.e. the judgment in Regular Civil Appeal No. 389 of 1983.

(e) The plaintiff filed second appeal, challenging the judgment and decree passed in Regular Civil Appeal No. 389 of 1983. The plaintiff also challenged the order passed below Exhibit-10 in Regular Civil Appeal No. 389 of 1983, by filing Civil Revision Application No. 564 of 1985, in this High Court.

3. The second appeal was listed for admission before this Court on 8th November, 1985. This Court admitted the second appeal on the following substantial question of law:

(1) Whether appellant is entitled to get the time extended fixed by decree in a suit for specific performance of contract raises a question of law?

4. Civil Revision Application No. 564 of 1985 was also listed for admission before this Court. This Court granted Rule and further ordered "to be heard with Second Appeal No. 244 of 1985". This order is passed on 8th November, 1985.

5. The controversy, as noted above, in the second appeal and the Civil Revision Application, is within very narrow compass. The contract of sale, entitlement of the plaintiff for specific performance and perpetual injunction, is accepted by the trial Court and confirmed by the first Appellate Court. At the cost of repetition, it is to be noted that, the decree was passed by the trial Court in Regular Civil Suit No. 270 of 1982 on 28th October, 1983 in favour of the plaintiff. The plaintiff was directed to deposit balance amount of consideration (purchase money) within three months from the date of decree which expires approximately to 27th January, 1984. The plaintiff, undisputedly, did not deposit the amount of balance purchase money to the extent of Rs. 6,100/-, on or before 27th of January, 1984. However, the plaintiff, after entering appearance in Regular Civil Appeal No. 389 of 1983, filed application seeking permission to deposit the amount of Rs. 6,100/- and/or extension of time to 9th February, 1984 i.e. about 13 days. It is to be noted that the appeal was filed by the defendant on 8th December, 1983.

6. The learned Counsel Mr. Borde for the plaintiff, submits that the decree passed by the trial Court is preliminary decree. Regular Civil Appeal No. 389 of 1989, filed by the defendant is continuation of the suit before the first Appellate Court. The first Appellate Court, under Section 107 of the Code of Civil Procedure, is empowered to consider the application, filed at Exhibit-10. Power to grant time, which was expired on 27th of January, 1984, as per the decree passed by the trial Court, is available under Section 148 of Civil Procedure Code, with the first Appellate Court. The plaintiff had filed an application, seeking extension of time and permission to deposit the unpaid purchase money to the extent of Rs. 6,100/-, on 9th February, 1984. The said delay of about 13 days, was justifiable and for sufficient cause. The first Appellate Court ought to have extended the time and permitted the plaintiff, to deposit the money. The application, filed by the plaintiff, was perfectly legal and ought to have been allowed. He has also pointed that the first Appellate Court has concurred with all findings recorded by the trial Court, in favour of the plaintiff. His contention is that the first Appellate Court does not become functus officio, as held by the first Appellate Court. Since it is a preliminary decree, the Court retains control over the decree. He has relied upon various judgments, in support of his contentions.

7. Learned Counsel Mr. M. V. Deshpande, for the respondent, strenuously urged that the appeal can be said to be a continuation of suit, if filed by the plaintiff, in case of dismissal of the suit, by the trial Court. If the suit is decreed and first appeal is filed by the defendant, it cannot be said to be a continuation of the suit, in relation to the plaintiff. According to him, the first Appellate Court has justifiably referred to the judgment of this Court in the matter of Bhujangrao Ganpati v. Sheshrao Rajaram, . He also submits that the decree passed by the trial Court in Regular Civil Suit No. 270 of 1982 is self operative decree, in case of failure on the part of the plaintiff, the suit stands dismissed and in that case it is a final decree passed by the trial Court. Specific performance of the contract can be granted by the Court under Section 12 of the Specific Relief Act. The provision laid down under Section 28 of the Specific Relief Act comes under Chapter-IV. According to him, Section 12, regarding specific performance of part of contract, comes under Chapter-II. These two chapters are distinct. Chapter-II is titled as "specific performance of contracts" and Chapter-IV is titled as "rescission of contracts". The defendant did not file an application seeking rescission of contract. Section 12 and Section 28 of the Specific Relief Act ought to have been considered separately. Application for extension of time has to be filed in the same suit i.e. the suit entertained by the trial Court, even after disposal of the same. The disposal of the suit does not matter for filing of such an application for extension of time by the plaintiff. The first Appellate Court, in this fact situation, being moved by the defendant, becomes functus officio and justifiably has dismissed the appeal and rejected the application, filed by the plaintiff. Mr. Deshpande also relies on various judgments. Lastly, he urged that Section 28 of the Specific Relief Act is independent and has nothing to do with the provision laid down under Section 12 of the Specific Relief Act. He urged for dismissal of the second appeal.

8. The first Appellate Court has referred to the judgment of this Court in the matter of Bhujangrao (supra). The provision laid down under Section 28 of the Specific Relief Act and Court's power under Section 148 of the Code of Civil Procedure were considered by this Court in the matter of Bhujangrao (supra). In the matter of Bhujangrao (supra) it appears that similar decree, to that of the case on hand, was being considered by this Court. Another admitted fact noted, was that the plaintiff failed to make the deposit in respect of the costs of execution and registration of the sale deed within the time fixed by the said decree and thereafter filed an application praying for condonation of delay in depositing the said costs within the time fixed by the decree. This Court, in the matter of Bhujangrao (supra) held that "in my opinion, however, the decree in the present case is not a decree under Section 28(1) of the Specific Relief Act, 1963, insofar as it is a self-operative final decree which provides in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. This Court also referred to a Division Bench judgment of this Court (un-reported judgment dated 19th August, 1959) holding that failure on the part of the plaintiffs to carry out the terms of the decree had automatically resulted in disposal of the suit and the Court had become functus officio and had no power to grant an extension of the time fixed by the decree. This Court in the matter of Bhujangrao (supra) also referred to the judgment of the Apex Court in the matter of Mahanth Ram v. Ganga Das, and noted that "Such procedural orders, though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happen within the time fixed". This Court further observed that the view taken by the Division Bench in unreported judgment is in essence with the Apex Court in the matter of Mahanth (supra) and ultimately allowed the appeal.

9. In the case on hand also, the trial Court has passed a conditional decree or self operative decree. The question, therefore, would be, whether trial Court could pass such conditional decree in a suit for specific performance and what is the nature of the decree passed by the trial Court, whether it is a preliminary decree or final decree.

10. In this context, it is apropos to refer to another judgment of learned Single Judge of this Court in the matter of Shankar Sadu Wanjhe v. Smt. Parwatibai Ramchandra Dongre, . Few facts requires to be noted, in the matter of Shankar (supra). It appears that it was second appeal by the original defendant Shankar, before this Court. The respondent Parwatibai, in the reported judgment, was plaintiff, who had filed a suit for possession of the suit property. Defendants had engaged two lawyers, one from Pune and another from Bhor. The Advocate from Pune could not attend the hearing and local Advocate withdrew his appearance, at the time of hearing of the suit. Resultantly, the defendant was left without aid of the Advocate and the trial Court refused the adjournment sought by the defendant. The suit was decreed against the defendant. In the appeal, before the District Court, Pune, it was ordered that the plaintiff's costs of the suit and that of the appeal, should be deposited in the Court on or before 10th of January, 1975 and that if the costs are so deposited the suit shall stand remanded to the lower Court for fresh trial, according to law. The defendant, on account of illness, could not deposit the costs on or before 10th of January, 1975, the day appointed by the Appellate Court and two days thereafter made an application to the District Court, Pune, for extension of time to deposit the costs in the Court, as ordered by the District Court. The costs being made a condition precedent, the learned District Judge was of the view that he was functus officio and, therefore, had turned down the request. That is how, the matter was before the learned Single Bench of this Court. This Court while deciding the second appeal in the matter of Shankar (supra), also referred to the judgment of this Court in the matter of L. P. Jain v. Nundkumar, . This Court has also referred to the judgment of the Apex Court in the matter of Mahanth Ram Das (supra). This Court ultimately held, in para 33:

33. Mr. Vaishnay has argued that the ratio of the Supreme Court decision is limited to a case where application for extension of time has been made before the expiry of the time. I am afraid, I am unable to agree with this contention. The Supreme Court has clearly laid down that the High Court is clothed with ample power under Sections 148, 149 and 151 of the Civil Procedure Code to do justice to the litigant if sufficient cause has been made for extension of time. I also agree with the observation of Kania, J., that the observations of the Supreme Court in Mahanth Ram Das v. Ganga Das Clearly go to suggest that an application for extension of time could have been granted even if it had been made after the time granted had expired.

In the matter of Shankar (supra), this Court has also referred to another judgment of learned Single Judge of this Court, in the matter of B. C. Shah and Co. v. T. P. Kanani, reported in 7976 Mh.L.J. 40 : 77 BLR 511. The learned Single Judge of this Court (Coram : Kania, J.) has considered the provision laid down under Order 37 Rule 4, Section 148, 151 of Civil Procedure Code. It appears that it was a case of ex parte decree in summary suit, set aside on condition to be fulfilled within certain time, time was not observed and question was regarding extension of time. In the matter of B. C. Shah (supra), learned Single Judge of this Court has referred to the earlier judgment of this Court in the matter of L. P. Jain (supra). In this judgment also, the judgment of the Supreme Court in the matter of Mahanth Ram Das (supra) was cited before this Court. The observations of the Supreme Court were noted as:

      32....

...  ...It was held by the Supreme Court that the High Court was not powerless to enlarge the time even though it had peremptorily fixed the period for payment, Section 148, Civil Procedure Code, in terms, allowed extension of time even if the original period fixed had expired, and Section 149 was equally liberal. It was further held that such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay. They do not, however, completely estop a Court from taking note of events and circumstances which happened within the time fixed. It was observed that Sections 148, 149 and 151 of the Civil Procedure Code clothed the High Court with ample power to do justice to a litigant if sufficient cause was made for extension.

It was further observed by this Court (Coram : Kania, J.) that the observations of Their Lordships of the Supreme Court show that the High Court could have exercised its powers first when the petition filed within time was before it, and again under the exercise of its inherent powers, when the two petitions under Section 151 of the Code were filed. If the High Court had felt disposed to take action on any of those occasions, Sections 148 and 149 would have clothed them with ample power to do justice to a litigant for whom it entertained considerable sympathy, but to whose aid it erroneously felt unable to come. Several other judgments were considered and ultimately, in the matter of B. C. Shah (supra), it was held :

(Last para, at page 517)

In my view, the decision in L P. Jain v. Nandkumar can no longer be regarded as a good law in view of the decisions to which I have referred above. In a case where an ex parte decree in a summary suit is set aside on certain conditions and a certain time has been granted for the fulfilment of those conditions, it is open to the Court to extend that time, whether the application for such extension is made before or after such time expire. In such a case, the part of order, which prescribes the period within which the condition imposed should be fulfilled, must be regarded as procedural and the Court has ample power to extend such period either under Section 148 or Section 151 of the Code. This is not to suggest that merely because an application is made for extension of time the Court would lightly grant the same. It would be for the Court to examine the merits of such an application and grant the extension sought for only if sufficient cause has been made out for not having complied with the condition in time.

The view taken by learned Single Judge of this Court (Coram : Kania, J.) is approved of by the learned Single Bench (Coram : Mukhi, J.) in paragraph No. 31, and as noted above, ultimately, time was extended.

11. It is apropos to refer to one more judgment of this Court in the matter of Yeshwant Shripati Patil v. Balkrishna Sakharam Patil and Ors. reported in 1987 Mh.L.J. 635. This judgment is delivered by this Court (Coram : A. D. Tated, J.) in Second Appeal No. 660 of 1980. In the matter of Yeshwant (supra) decree for specific performance directed the plaintiff to deposit particular amount within specified period and consequence was embodied in the decree itself. It was provided that in case of failure, suit was to stand dismissed. The requisite amount was directed to be deposited within specified time. In appeal, the Appellate Court directed to deposit additional amount within further specified time. The deposit was made accordingly. Objection was raised that the additional amount should have been deposited within the period as mentioned by the trial Court, for depositing the amount. Ultimately, question which was considered by this Court, was in respect of passing such decree. This Court held that such a decree being preliminary decree, Court not entitled to provide such conditional clause that in case of failure on the part of the plaintiff suit will stand dismissed. This Court has considered the provision laid down under Section 28 of the Specific Relief Act. Relevant paragraph, in this respect is para No. 7. This Court held in para 8:

8. The learned Counsel for the petitioner contends that in a suit for specific performance, where purchaser plaintiff succeeds in obtaining a decree for specific performance it is not proper for the Court to direct that on failure to deposit the amount within a particular time the suit shall stand dismissed. In support of his contention he relies on the decision in K. Karaswathi (alias) K. Kalpana v. P.S.S. Somasundarum Chettiar, 1977 Madras Law Journal (Vol. II) 68. It was a suit for specific performance of an agreement of sale and the decree fixed time limit for depositing the amount and further provided that in default of deposit within the prescribed time, the suit shall stand dismissed. Their Lordships of the Madras High Court on considering decisions of various High Courts and the Supreme Court decision in Mahant Ram Das v. Ganga Das , held that a decree for specific performance was in the nature of a preliminary decree. That the mere passing of such a decree did not put an end to that suit and that the trial Court retained complete control over the entire proceedings so as to adjudicate upon the rights of the parties arising out of the preliminary decree passed by it. Their Lordships also considered the provisions of Section 28 of the Specific Relief Act and on page 85 of the report observed thus:

The only other question is, whether the learned Judge had jurisdiction to provide that the suit shall stand automatically dismissed, if the appellant committed default in making the payment within the time stipulated in the decree. Having regard to the decisions, which we have referred to already, holding that the decree in a suit for specific performance is in the nature of a preliminary decree, and also having regard to the express provisions contained in Section 28 of the Specific Relief Act, 1963, which constitute the statutory crystallization of the legal position in this behalf, we are clearly of the opinion that the learned Judge had no jurisdiction to provide that if the appellant committed default in making the deposit within the time stipulated in the decree, the suit shall stand dismissed, since that will destroy the character of the decree as a preliminary decree and disable the Court from granting the reliefs provided for in Section 28(3), as occasion may warrant.

In this matter also, the judgment of this Court, in the matter of Bhujangrao (supra), the judgment, which is relied upon by the first Appellate Court in the case on hand, and disposed of the appeal as infructuous, was referred to. In the matter of Yashwant (supra) also, judgment of the Apex Court, in the matter of Mahanth Ram Das (supra) was referred to. What is important in the present case is, that this Court, in relation to Section 28 of the Specific Relief Act, referring to the judgment of the Madras High Court, held that the decree under Section 28, is a preliminary decree and such conditional clause was without jurisdiction and bad in law.

12. In this context, it is apropos to refer one more judgment of this Court in the matter of Vatsala Shankar Bansole v. Sambhaji Nanasaheb Khandare and Anr. . It was Civil Revision Application No. 1865 of 2001, decided by this Court (Coram : R.M.S. Khandeparkar, J.). In this matter, judgment of this Court, in the matter of Bhujangrao (supra), and Mahanth Ram Das (supra) and Daxa N. Gandhi v. Indira Maruti Varadkar and others judgments were referred to. In the matter of Vatsala (supra), this Court held that the decree for specific performance has to be in the nature of preliminary decree and merely because there are certain other observations in such a decree like consequences for failure to deposit the amount within a specified period under the decree, it would not partake of the nature of final decree or conditional decree. This Court has also referred to the provision laid down under Section 28 of the Specific Relief Act. This Court has noted the observations of learned Single Judge of this Court in the matter of Bhujangrao (supra) regarding the Court become functus officio after passing of the decree. In para 7 of this judgment, this Court held that the judgment of this Court in the matter of Bhujangrao (supra) is no more good law and is not binding on this Court in view of the Supreme Court judgment reported in the matter of Mahanth Ram Das (supra).

13. The learned Single Judge, in the matter of Vatsala (supra) has also referred to the judgment of the Apex Court in the matter of K. Kalpana Saraswathi v. P. S. S. Somasundaram, . As per the decree therein, the amount was required to be deposited in the Court within the specific period, failing which the suit was to stand dismissed. The amount was not deposited within the time stipulated under the decree. The application of the plaintiff for extension of time was rejected and the decree for rescission of the contract being the consequential relief, was passed. While setting aside the order and decree, the Apex Court held that it is perfectly open to the Court in control of a suit for specific performance to extend the time for deposit. Another judgment of the Apex Court, in the matter of Hungerford Investment Trust Limited (In Voluntary Liquidation) v. Haridas Mundhra and Ors. was also referred to by the learned Single Judge of this Court in the matter of Valsala (supra). In the matter of Hungerford (supra), it was held that it is settled by series of decisions of Indian High Courts that the Court which passes a decree for specific performance retains control over the decree even after the decree has been passed. This ruling has been given after referring to various decisions of Madras, Calcutta, Allahabad and Patna High Courts, including Mohommadalli Sahib v. Abdul Khadir Saheb, reported in 1930 MLJ Vol. 59. p. 351, wherein it was held that the Court which passes a decree for specific performance has the power to extend the time fixed in the decree for the reason that Court retains control over the decree, that the contract between the parties is not extinguished by the passing of a decree for specific performance and that the contract subsists notwithstanding the passing of the decree. The learned Single Judge has further held that - in order to rescind the contract even in such a case, it would be necessary for the defendant to move the Court for effective order under Section 28 of the said Act. Considering the scope of Section 28 of the Specific Relief Act, therefore, the conditions regarding the dismissal of the suit in case of non-payment of balance amount within specified period in decree for specific performance, it could not result in such a decree partaking of the nature of a final decree and, therefore, it cannot be said that Court becomes functus officio.

14. It is apposite to refer to Section 28 of the Specific Relief Act, 1963 (for the sake of brevity, hereinafter, referred to as "the Act of 1963"). It has been enacted with a view to provide a remedy in case the plaintiff in whose favour the decree for specific performance of contract for sale or lease of immovable property has been executed, but who does not pay within the time specified in the decree itself, or even within such further time, the Court may allow the purchase money or any other sum, which the Court ordered him to pay as a condition for the enforcement of the decree. This section provides that in such cases, the vendor or the lessor will have a right to approach the Court, which passed the decree and apply in the same suit, in which the decree was passed, to rescind the contract, so far it relates to the party in default.

The provisions of Section 28 of the said Act of 1963 shows that the trial Court has jurisdiction to extend the time for payment of purchase price, even if it had slated a date for the same in the first instance, in the decree originally passed. It further goes to show that if the time permitted in a decree, whether passed by the trial Court or an appellate Court, in a suit for specific performance, when it mentions the date for payment of purchase price, the date is merely an incidental direction in favour of the plaintiff. It is not the contingency that such date cannot be extended at a subsequent stage by the trial Court. The Court concerned, however, shall carefully examine the reasonableness and adequacy of the ground, raised in such a request for extension of time.

The decree passed for specific performance is in the nature of preliminary decree. Considering the scope of Section 28 of the Act of 1963, therefore, the condition embodied in the decree regarding dismissal of the suit in case of nonpayment of balance amount within specified period in a decree for specific performance, it would not result in such a decree partaking of the nature of a final decree and therefore, it cannot be said that the Court becomes functus officio once, such decree is passed. I am in respectful agreement with the view taken by this Court in the matter of Vatsala (supra). I am also in agreement with the view taken by the learned Single Bench of this Court in the matter of Yeshwant (supra).

15. Undisputedly, in the case at hand, the defendant was in appeal. There was no application/step taken by the defendant for rescission of contract. In the appeal filed by the defendant, the plaintiff made an application Exhibit 10 seeking permission to deposit the balance amount of purchase money. This application was filed after a delay of about 13 days. The reason assigned in this application, however, is just and sufficient. The submission of learned Counsel Shri Deshpande for the respondents cannot be accepted that in case of dismissal of the suit and appeal by the plaintiff alone, it can be said that the appeal is a continuation of suit. It is apposite to refer to the judgment of the Apex Court in the case of State of Kerala v. K.M. Charm Abdulla and Co. , wherein, it is observed as under:

... When it introduced the familiar concepts of appeal and revision, it is also reasonable to assume that the well-known distinction between these two jurisdictions was also accepted by the Legislature. There is an essential distinction between an appeal and a revision. The distinction is based on difference implicit in the said two expressions. An appeal is a continuation of the proceedings; in effect the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed....

In my view, therefore, the appeal is continuation of a suit, even in case of a decretal of the suit, which is brought in question by the defendant before the Appellate Court. The Appellate Court in such circumstance is the same Court as contemplated under Sub-section (1) of Section 28 of the Act of 1963. The Appellate Court can certainly extend the time for depositing the purchase money in case just and sufficient grounds are raised. The finding of the first Appellate Court in the present case that the first Appellate Court becomes functus officio is, therefore, illegal.

It is useful to refer to the judgment of the Apex Court in the case of Ramankutty Guptan v. Avara , wherein, it is observed:

6. Shri Nambiar, learned Counsel appearing for the respondent, contended that the meaning of the word same suit in Section 28(1) of the Act should not be construed to be the original Court in which the decree was made. Therefore, the application would lie for extension of time, or for rescinding the contract, only in the Appellate Court and not in the trial Court, that too on execution side. We find no force in the contention. Section 37, Civil Procedure Code enumerates that:

37. Definition of the Court which passed a decree - The expression Court passed a decree, or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include -

(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and....

Therefore, it is clear that the decree of the Appellate Court would be construed to be the decree passed by the Court of first instance. It is settled law that an appeal is a continuation of the suit. Therefore, where a decree for specific performance has been dismissed by the trial Court, but decreed by the Appellate Court, it should be construed to be in the same suit. When the decree specifies the time for performance of the conditions of the decree, on its failure to deposit the money, Section 28(1) 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. In K. Kalpana Saraswathi v. P.S.S. Somasundaram Chettiar this Court held that on an oral prayer made by the counsel for the plaintiff for permission to deposit the entire amount as directed by the trial Court this Court directed the appellant to deposit the amount within six months from that date together with interest and other conditions mentioned therein. An application for extension of time for payment of balance consideration may be filed even in the Court of first instance or in the appellate Court in the same suit as the decree of the trial Court stands merged with that of the Appellate Court which decree is under execution. It is to be seen that the procedure is the handmaid for justice; and unless the procedure touches upon jurisdictional issue, it should be moulded to subserve substantial justice. Therefore, technicalities would not stand in the way to subserve substantive justice. Take a case where the decree is transferred for execution to a transferee executing Court, then certainly the transferee Court is not the original Court and execution it is not the 'same Court' within the meaning of Section 28 of the Act. But when an application has been made in the Court in which the original suit was filed and the execution is being proceeded with, then certainly an application under Section 28 is maintainable in the same Court.

16. In the result, and for the foregoing reasons, I am inclined to allow Second Appeal No. 244 of 1985 by quashing and setting aside the judgment and decree passed by the first Appellate Court in Regular Civil Appeal No. 389 of 1983, passed by the learned District Judge, Nanded on 29th October, 1985. The request made, on behalf of the plaintiff, seeking extension of time for depositing the balance purchase money, to the extent of Rs. 6,100/-, is accepted. The plaintiff is permitted to deposit the amount of Rs. 6,100/-(balance consideration/purchase money), in the trial Court, within a period of six weeks from the date of receipt of writ of this Court, by the trial Court. The rest of the judgment and decree passed by the trial Court in Regular Civil Suit No. 270 of 1982 stands confirmed, except item No. II, which is reproduced below:

(II) If the plaintiff fails to deposit the amount as per order within stipulated time, then his suit of specific performance of contract shall automatically stands dismissed.

In view of the above, and for the reasons stated in the foregoing paragraphs, the Civil Revision Application also stands disposed of accordingly.