Calcutta High Court (Appellete Side)
Elahi Sk. & Anr vs Sofi Md. & Ors on 6 July, 2023
Item No. 1
06.07.2023
GB
C.O. 837 of 2020
Elahi Sk. & Anr.
Vs.
Sofi Md. & Ors.
Mr. Partha Pratim Roy
... for the Petitioners.
Affidavit-of-service filed in Court today, be kept with
the record.
Despite service, none appears on behalf of the
opposite parties. Yesterday also, none appeared on behalf of
the opposite parties when the matter was called on. The
learned advocate for the opposite parties has also been
served. Thus, the revisional application is taken up in the
absence of the opposite parties.
The revisional application is filed against an order
dated April 10, 2019 by which the learned Civil Judge (Junior
Division), Lalbagh refused to extend the time to deposit the
consideration amount on the basis of the prayer made by the
plaintiffs. The suit for specific performance of contract was
decreed in favour of the plaintiffs. The defendants were
directed to execute and register the deed of sale in respect of
the suit property in favour of the plaintiffs within 45 days
from the date of the judgment and to hand over possession of
the suit property, if not delivered earlier, failing which, the
plaintiffs would be at liberty to put the decree into execution
subject to deposit of remaining consideration amount of
Rs.15,454/- within 30 days from the date of the judgment.
It appears that at the time of putting the decree into
execution, the decree-holders prayed for execution upon
deposit of the remaining sum of Rs.15,454/-. A prayer for
condonation of the delay in depositing the money was made.
It was explained that the delay was unintentional and not on
account of any laches on the part of the decree-holders.
Prayer for enlargement of the time to deposit the amount
was made. The Court did not find any plausible reason as to
why such delay occurred and held that after the judgment
had been passed, the court had become functious officio. As
such, the judgment could not be varied. It was not a clerical
mistake which was sought to be corrected by the decree-
holders, but the prayer if allowed would be in the nature of
rectification of the judgment.
Mr. Roy, learned advocate appearing on behalf of the
decree-holders submits that as per Section 28 of the Specific
Relief Act, 1963, the Court may allow the purchaser to pay
the purchase money later. Reference has been made to the
decision of Yeshoda and Ors. versus K. Nagarajan
passed in SLP (C) No.18603 of 1996. The Hon'ble Apex
Court found extension of three months time for depositing of
purchase money by a learned court was justifiable. Section
148 of the Code of Civil Procedure empowered the civil court
to enlarge the time for complying orders.
Further reliance has been placed on the decision of
Prime Promotors Pvt. Ltd. versus Aroop Kumar
Chatterjee and Ors. passed in C.O. No.985 of 1994 by
which a coordinate Bench had held that Section 28(1) of the
Specific Relief Act, 1963 empowered the court to extend time
for making deposit under decree without making any
distinction with regard to the nature of the decree.
Thus, the findings of the learned court below that once
the decree has been passed the court had become functious
officio and could not extend the time for deposit of the
remaining consideration money in compliance with the
decree, is not correct.
With regard to the ground for delay, this Court finds
that the explanation given is reasonable. As per the judgment
dated February 17, 2018, the plaintiffs were granted liberty to
execute the decree provided Rs.15,454/- being the remaining
consideration money was deposited within 30 days from the
date of the judgment. The application for extension of time to
deposit the money was filed on February 18, 2019, that is,
after 11 months from the date prescribed by the Court. The
ground for such delay has been explained in the application.
The explanation given is inadvertence and lack of
knowledge of the petitioners. In any event, the petitioners
cannot be deprived of their right to execute the decree only
on the ground of such delay in depositing of the
consideration money, when admittedly the judgment debtors
have not complied with their obligation as per the judgment.
The plaintiffs could not understand the true meaning
of the judgment, which was confusing. The plaintiffs
understood the judgment as if the court had directed the
defendants to execute the deed and in failure of such
execution the plaintiffs were required to deposit the
consideration money and pray for execution. In any event,
once the plaintiffs/decree-holders have been favoured with
the decree of specific performance of contract on contest,
delay in depositing the money cannot be a reason to deprive
the decree-holders from enjoying the result of such decree.
As they are willing to deposit the amount, the order
impugned is set aside. The Title Execution Case No.07 of
2018 shall revive upon payment of cost of Rs.5,000/- to the
judgment debtors within seven days from communication of
this order. The decree-holders shall deposit the amount of
Rs. 15,454/- before the learned executing court within ten
days from the date of communication of this order.
Thereafter, the execution case shall proceed.
Accordingly, the revisional application is disposed of.
Urgent photostat certified copy of this order, if applied
for, be given to the parties on priority basis.
(Shampa Sarkar, J.)
