Having given above findings, the obvious corollary is that
since the Plaintiff-Buyer failed to comply with the terms of the
decree, the suit stood dismissed as the order passing the
decree was a peremptory order. In light of this, we do not find
it necessary to address the arguments made by the counsel on
the point of bona fide purchaser. Further, the contention that
the acceptance of deposit made by the Plaintiff-Buyer on
29.05.2007 is an implied grant of extension of time is a
misplaced one. Reliance cannot be placed on Md.
Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in
that case there was an application for extension of time which
was granted, though at the risk of the depositor, along with the
deposit of amount. This Court in the said case held that when
the Court had allowed the application for extension of time in
its wisdom, there was no reason to disturb it later. In the
present case, there is rather a reverse situation wherein the
Trial Court has dismissed the application for extension of time
giving due reasons. In view of above findings, the question as
to whether the Plaintiff-Buyer was required to give notice of
the amount deposited also need not be answered, although
we believe that had the Plaintiff-Buyer, irrespective of any
obligation under law, given notice of the deposit made to the
Defendant-Seller it would have helped the case of the PlaintiffBuyer.
15. Thus, in the present case, the Plaintiff-Buyer has clearly
defaulted on time of depositing as well as the mode of
payment. The decree was self-operative and the suit stood
dismissed for non-compliance of the decree. Further, the
Plaintiff-Buyer also failed to make out a case for condonation of
delay.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3213 OF 2015
(Arising out of SLP(C) No.5840 of 2012)
P.R. Yelumalai … Appellant
:Versus:
N.M. Ravi … Respondent
Citation;(2015) 9 SCC52
Pinaki Chandra Ghose, J.
1. Leave is granted in both the matters.
2. These cross appeals have been filed against the judgment
and order dated 22.08.2011 passed by the High Court of
Karnataka at Bangalore in Writ Petition (Civil) No.6449 of 2010,
whereby and whereunder the High Court of Karnataka has set
aside the order dated 15.02.2007 passed by the Trial Court in
O.S. No.439 of 2006 and remitted the matter to the Trial Court
for disposal afresh in accordance with law.
3. The factual background of the case is that on 04.08.2006,
one P.R. Yelumalai, who is the appellant in the first appeal,
entered into an Agreement of Sale with N.M. Ravi, the
respondent in the first appeal, is the absolute owner of the
property. The total consideration for the sale was
Rs.41,60,000/-, out of which a sum of Rs.8 Lakhs was paid as
advance money towards the total consideration amount.
Thereafter, the Seller vide legal notice dated 04.09.2006
sought to cancel the agreement of sale which was refused by
the Buyer. This led to filing of a suit for specific performance of
the contract by the Buyer P.R. Yelumalai (hereinafter referred
to as “the Plaintiff-Buyer”), before the II Additional Civil Judge
(Sr. Division), Kolar, being O.S. No.439/2006. The Seller N.M.
Ravi (hereinafter referred to as “the Defendant-Seller”)
conceded to the Plaintiff-Buyer’s prayer for performance of the
said agreement stating that he had no objection to the Court
decreeing the suit in favour of the Plaintiff-Buyer. Accordingly,
the suit was decreed on 15.02.2007 and the Plaintiff-Buyer was
directed to deposit the balance sale consideration of
Rs.33,60,000/- by way of demand draft, in Court within one
month from the date of decree and the Defendant-Seller was
directed to execute regular sale deed in favour of the Plaintiff
Buyer, within three months from the date of decree. It was
made clear by the Trial Court in the decree that if the balance
amount of sale consideration is not deposited within one
month from the date of decree, the suit shall be deemed to
have been dismissed.
4. The Plaintiff-Buyer did not deposit the said amount within
one month as stipulated in the decree but he filed an
application for extension of time for depositing the amount of
balance sale consideration and vide order dated 17.03.2007,
the Additional Civil Judge (Sr. Division) extended the time by
two months. After the extension order, the last date for
deposit of the amount fell during the Summer Vacation of the
Court. The Plaintiff-Buyer did not deposit the said amount even
on the re-opening day after Summer Vacation, i.e. 28.05.2007.
But allegedly, he filed a Memo for issue of Receipt Order (R.O.)
for depositing the said amount. However as per the records,
the R.O. was issued on 29.05.2007 and the amount was
deposited on the same day by cash.
5. Admittedly, the Defendant-Seller was not served with a
copy of the Memo and was not notified with regard to thePage 4
4
alleged deposit. The Defendant-Seller sold the property in
question to Sri Rajesh on 20.06.2007, under a registered sale
deed. The Plaintiff-Buyer filed Execution Petition No.88/2008 on
17.03.2008 in the Court of IInd Additional Civil Judge (Sr.
Division), which was dismissed on 20.10.2008. The IInd
Additional Civil Judge observed as follows:
“7. It is also the contention of the J.Dr. there is no
evidence that D.Hr. has deposited the balance
consideration on 29.5.2007. Therefore records in
O.S.439/2006 were secured by the court and perusal
of the same, it is revealed that in the order sheet
after 170/07 there is an endorsement of the office
that consideration amount of Rs.33,60,000.00 is
deposited under J.D.No.177/07 (R.O. No.295806)
dated 29.5.2007 and the same endorsement is
found in the certified copy of the order sheet
produced by the D.Hr. in this case. However, the
counsel for the J.Dr. argued that he has also
obtained copy of the order sheet and in his order
sheet in O.S. 439/06 said endorsement is not there
and therefore, he impliedly contended that
endorsement has been subsequently got written in
the order sheet. However, when there is no
allegation made against the court officials merely
because the endorsement was written in the order
sheet after the certified copy of the order sheet in
O.S.439/06 was issued to the J.Dr. it does not mean
that endorsement is correct. Further it is seen that
J.Dr. has produced the copy of the order sheet
obtained by him in this case and perusal of the same
reveals that he has applied for the copy on
29.5.2007 and obtained it on the same day.
Therefore, there is all the chance that after issuance
of the certified copy of the J.Dr. the deposit of
amount may be noted in the order sheet on the
same date, but after issue of certified copy of the
J.Dr.
It is also the contention of the J.Dr. that even if it is
presumed that vacation period has to be excluded
by calculating the extended period of 2 months,
then D.Hr. was required to deposit the balance
consideration on 28.5.2007 as that was the reopening
day for the civil courts. A perusal of the
calendar of 2007 does reveal that re-opening day
was 28.5.2007 and not on 29.5.2007 as contended
by D.Hr.
9. Thus the D.Hr. is entitled for seeking exclusion
of vacation period while calculating the extended
period of 2 months of deposit of balance
consideration. Admittedly the judgment was passed
on 15.2.2007. However, a perusal of order dated
15.2.2007 makes it clear that period of 1 month
given to plaintiff/D.Hr.to deposit the balance
consideration starting from the date of decree and
not from the date of order dated 15.2.2007, because
order clear states that D.D. of Rs.33,60,000.00 will
have to be deposited within one month from the
date of decree. Further order sheet in O.S.439/06
makes it clear that decree is signed on 27.2.2007.
Therefore, initially the period of one month started
from 27.2.2007 and ended on 26.3.2007 and since
period was extended for 2 months on 17.2.2007
normally last date for deposit of balance
consideration fell on 26.5.2007 and the civil court
was not working on 26.5.2007 and next date i.e.,
27.5.2007 was Sunday.
10. Hence, the D.Hr. was required to deposit the
balance consideration on 28.5.2007, which was the
re-opening day. However, to show that he made
efforts to deposit the balance consideration on
28.5.2007 and made an application for issue of R.O.
on 28.5.2007 itself there is no material placed
before the court by the D.Hr. Hence, as the
endorsement on the order sheet in O.S. 439/06
reveals that R.O. is dated 29.5.2007 and deposit is
made on 29.5.2007 it is clear that even though the
D.Hr. was required to make the deposit on the re-
opening day i.e., 28.5.2007, he has failed to do so
and has deposited it only on the next day….”
6. The aforesaid order of dismissal passed by the Trial Court
on 20.10.2008 in Execution Petition No.88/2008, was
challenged by the Plaintiff-Buyer before the Karnataka High
Court by filing Writ Petition No.13541/2008. The High Court of
Karnataka did not find any error in the order passed by the
Executing Court and dismissed the writ petition on 7.1.2010.
However, it permitted the Plaintiff-Buyer to move the Court
which had passed the decree, for seeking extension of time in
depositing the amount of balance sale consideration.
7. On 10.02.2010, the Plaintiff-Buyer filed an application
under Section 148 of the Code of Civil Procedure (“CPC”, for
short) for extension of time till 29.5.2007. The Additional Civil
Judge (Sr. Division) vide order dated 15.02.2010, rejected the
application for extension of time on the following reasoning:
“Whereas the order of this Court itself is very clear,
that the plaintiff as to deposit the balance amount
within two months from the date of its order. Under
the said circumstances the plaintiff need not wait till
last date, knowing the said day is vacation. Further
the plaintiff has taken chance to deposit on reopening
day, where he could not deposit, but
deposited on the next day without seeking further
extension of time according to his whims andPage 7
7
fancies. Further, the plaintiff has not placed any
materials to show that he had approached the court
on 28.8.07. But the orders sheet at page 8, it reveals
that consideration amount of Rs.33,60,000/- is
deposited under J.D. No.170/07 (R.O. No.0295806
dated 29.5.07). Hence from the said order sheet, it is
clear that the plaintiff has approached the court on
29.5.07 i.e. the very next day of re-opening day,
where there is a delay of one day in depositing of
consideration amount.
Further, the order of Hon’ble High Court in W.P.
No.13541/08 is dated 7.1.2010. Whereas the Hon’ble
High Court of Karnataka held that the trial court shall
pass appropriate orders within one week thereof. But
on perusal of said orders it reveals that the plaintiff
had applied for copy of said order on 4.2.2010 and
obtained copy on 5.2.10 and appeared before this
court with the said orders on 10.2.2010 and filed the
present application for extension of time to deposit
the balance sale consideration amount. But the
plaintiff instead of filing the present application
within one week from the date of order of Hon’ble
High Court, he has filed the present application on
10.2.2010 where there is a delay of more than three
weeks in filing the present application. Though the
plaintiff is aware of the order of the Hon’ble High
Court on 7.1.2010, but he has not applied for
certified copy of the said orders on same day. But he
has applied for the copy of the said order after lapse
of one month which is also delayed by one month.
Therefore, under said circumstances, the plaintiff
has not made out any grounds to allow the said
application for extension of time to deposit the
balance sale consideration amount of
Rs.33,60,000/-.
Thus under the said circumstances the application
filed by the plaintiff U/Sec.151 of CPC is hereby
rejected with costs.”
8. Aggrieved by the said order, the Plaintiff-Buyer again filed
a writ petition before the Karnataka High Court, being WritPage 8
8
Petition No.6449/2010. The High Court remanded the matter
to Trial Court by formulating four questions to be answered by
it, which were: (i) whether the amount deposited on
29.05.2007 amounts to a deemed extension of time and a
valid deposit; (ii )whether one Rajesh who has purchased the
property is a notified purchaser; (iii) whether the appellant is
entitled to extension of time when third party interest is
created; and (iv) whether the suit stood dismissed on
28.05.2007 or earlier when the amount was not deposited in
terms of the decree. The High Court directed the Trial Court to
dispose of the matter within two months from the date of
receipt of the order. Aggrieved by the order of remand passed
by the Karnataka High Court, the parties are before us.
9. The learned counsel for the Plaintiff-Buyer contended that
this is not a proper case to be remanded back to the Trial Court
for fresh consideration and the High Court should not have
remanded the case. He further contended that Execution Case
No.88/08 was solely dismissed on the ground of one day delay
although there were valid reasons for the alleged delay. He
further contended that the High Court failed to appreciate that
the request for issue of Receipt Order (R.O.) on the re-opening
day, is deemed compliance with limitation period as provided
in Section 4 of the Limitation Act and, hence, the High Court
directed the Plaintiff-Buyer to file an application for extension
of time by a single day. This request of the Plaintiff-Buyer to
issue the R.O. on re-opening day is to be construed as deemed
compliance under the Limitation Act read with Section 28(6) of
the Karnataka Civil Courts Act, 1964. Learned counsel for the
Plaintiff-Buyer also contended that the Trial Court also failed to
consider the matter on merits in O.S. No.439/2006 and
dismissed the application for extension of time solely on
technical ground, and in contravention of Section 5 of
Limitation Act. According to the learned counsel, in view of
Section 5 of the Limitation Act, both the Trial Court and the
High Court erred in not condoning the delay from 07.01.2010
to 10.02.2010 in filing the application for extension of time
before the Trial Court. Further, the learned counsel argued that
the acceptance of deposit of money by the Court on
29.05.2007, in itself amounted to implied grant of extension of
time by the Court. In support of the said contention, he relied
on the case of Md. Alimuddin v. Waizuddin and Anr.,
(1998) 9 SCC 108. He also submitted that the procedure
should only be an aid to achieve justice and procedural
technicalities should not be used to abuse the process of law.
On the point of the third party interest being created in the suit
property, he submitted that the purchaser (Sri Rajesh) of the
suit property is not a bona fide purchaser. Alternatively, he
argued that the concept of bona fide purchaser does not find
relevance when the principles of lis pendens apply. He
submitted that as per Section 52 of the Transfer of Property
Act, 1882, no transfer of any immoveable property during the
pendency of any suit or proceeding in relation to that property
can take place except with the authority of the Court in which
such suit or proceeding in pending. On the basis of these
submissions, he contended that the title of the purchaser as
per sale deed dated 20.06.2007 is defective as against him.
10. Learned counsel for the Defendant-Seller, on the other
hand, contended that under Section 28(1) of the Specific Relief
Act read with Section 151 of CPC, the Trial Court alone has
power to extend the time to satisfy the conditional decree.
When the Trial Court had exercised its discretion and granted
extension of two months’ time for making payment of the
balance consideration amount, even then the Plaintiff-Buyer
failed to pay on time and in the prescribed mode. In addition to
this, counsel for the Defendant-Seller contended that the
Plaintiff-Buyer has not given notice to the respondent of
delayed payment by cash. Defendant-Seller had no notice of
delayed payment by cash. The learned counsel submitted that
as per Order XXI Rule 2 of CPC, the judgment-debtor is
required to give notice to the decree-holder of the deposit of
any money in Court. He contended that in the present case,
even though the Plaintiff-buyer is a decree-holder, yet the
obligation of notice would apply to him also. In absence of this
notice, learned counsel contended that the Defendant-Seller
was in his right to sell the property to a third party. He further
reinforces the justification for sale deed dated 20.06.2007 by
pointing out that the decree in this case was a conditional one
and self operative in case of non-compliance. Since, the decree
clearly mentioned that if the amount of balance consideration
is not deposited within the period stipulated therein, the suit
shall be deemed to have been dismissed. The Plaintiff-Buyer
lost his right under the decree as soon as the time granted
under the decree expired by not complying with the decree.
The learned counsel further argued that the mode of deposit of
the amount was not in terms of the decree as the amount was
deposited in cash while the decree required the deposit to be
made in the form of demand draft. Thus, the learned counsel
submitted that the Plaintiff-Buyer had completely failed to
obey the commands in the decree.
11. Arguments were also made by the learned counsel on
both sides as to which Court had the power to grant extension
of time and several authorities were cited on this point.
However, we find that after the execution Court had dismissed
the execution proceeding on the ground of delay in depositing
the amount, the same question was dealt with by the original
side of the Trial Court as well in the application for extension of
time. Since both the Courts have given concurrent findings
that the case for extension of time was not made out, we are
of the opinion that dealing with the question as to which Court
had the jurisdiction to decide this point, will be an exercise in
futility. It would suffice to say that the Court has the discretion
to extend the time upon an application made by the party
required to act within a stipulated time period. Extension of
time can be granted even after the expiry of the period
originally fixed. In Johri Singh v. Sukh Pal Singh and Ors.,
(1989) 4 SCC 403, this Court observed:
“This Section empowers the Court to extend the
time fixed by it even after the expiry of the period
originally fixed. It by implication allows the Court to
enlarge the time before the time originally fixed. The
use of ‘may’ shows that the power is discretionary,
and the Court is, therefore, entitled to take into
account the conduct of the party praying for such
extension.”
12. From a perusal of the judgment and decree dated
15.2.2007 passed by the Trial Court, it is clear that the period
of one month granted for depositing the balance consideration
started from the date of decree. From the records it appears
that the decree was signed on 27.2.2007. Therefore, the
period of one month started from 27.2.2007 and ended on
26.3.2007. After extension of two months was granted, the last
date for depositing the amount of balance consideration fell on
26.5.2007. As the Civil Court was not working on 26.5.2007
and next date i.e., 27.5.2007 was Sunday, the Plaintiff-Buyer
was to deposit the amount on 28.5.2007, which was the reopening
day. However, there is no evidence on record to show
that he made efforts to deposit the balance consideration on
28.5.2007 or made an application on 28.5.2007. The R.O. is
dated 29.5.2007 and deposit was made on 29.5.2007. Thus,
the Plaintiff-Buyer failed to comply with the decree and the suit
stood dismissed automatically.
13. The Trial Court rightly held that the decree-holder did not
make the deposit within the time stipulated by the Court nor
the deposit of the balance consideration was made through
the mode as stipulated by the Court, and that being the case,
the suit will have to be deemed as dismissed. The Trial Court
further held that the decree-holder is not entitled to seek
execution of decree, which does not exist in the eye of law and
consequently the Trial Court dismissed the execution petition.
Further, we have already discussed the order of the Trial Court
in the application for extension of time and we do not take the
contention of the Plaintiff-Buyer that the application was
dismissed solely on the technical ground and that the
application was filed after a delay of 3 weeks. The Trial Court
has discussed full merits of the application and given a finding
that there is no evidence to show that the plaintiff had made
any effort to deposit the amount on the 28.05.2007. The
application was dismissed on its merits and not merely on the
technical grounds. Further, we accept the submission of the
learned counsel for the Defendant-Seller that the PlaintiffBuyer
had even failed to make the deposit through the mode
of payment as required by the decree.
14. Having given above findings, the obvious corollary is that
since the Plaintiff-Buyer failed to comply with the terms of the
decree, the suit stood dismissed as the order passing the
decree was a peremptory order. In light of this, we do not find
it necessary to address the arguments made by the counsel on
the point of bona fide purchaser. Further, the contention that
the acceptance of deposit made by the Plaintiff-Buyer on
29.05.2007 is an implied grant of extension of time is a
misplaced one. Reliance cannot be placed on Md.
Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in
that case there was an application for extension of time which
was granted, though at the risk of the depositor, along with the
deposit of amount. This Court in the said case held that when
the Court had allowed the application for extension of time in
its wisdom, there was no reason to disturb it later. In the
present case, there is rather a reverse situation wherein the
Trial Court has dismissed the application for extension of time
giving due reasons. In view of above findings, the question as
to whether the Plaintiff-Buyer was required to give notice of
the amount deposited also need not be answered, although
we believe that had the Plaintiff-Buyer, irrespective of any
obligation under law, given notice of the deposit made to the
Defendant-Seller it would have helped the case of the PlaintiffBuyer.
15. Thus, in the present case, the Plaintiff-Buyer has clearly
defaulted on time of depositing as well as the mode of
payment. The decree was self-operative and the suit stood
dismissed for non-compliance of the decree. Further, the
Plaintiff-Buyer also failed to make out a case for condonation of
delay. In view of these findings, we are of the opinion that the
questions formulated by the High Court in the order of remand
are not required to be answered by the Trial Court.
Consequently, the appeal filed by the Plaintiff-Buyer is
dismissed and the appeal filed by the Defendant-Seller is
allowed. There shall be no order as to costs.
….....…..…………………..J.
(J. Chelameswar)
...........…………………….J.
(Pinaki Chandra Ghose)
New Delhi;
March 27, 2015.
Print Page
since the Plaintiff-Buyer failed to comply with the terms of the
decree, the suit stood dismissed as the order passing the
decree was a peremptory order. In light of this, we do not find
it necessary to address the arguments made by the counsel on
the point of bona fide purchaser. Further, the contention that
the acceptance of deposit made by the Plaintiff-Buyer on
29.05.2007 is an implied grant of extension of time is a
misplaced one. Reliance cannot be placed on Md.
Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in
that case there was an application for extension of time which
was granted, though at the risk of the depositor, along with the
deposit of amount. This Court in the said case held that when
the Court had allowed the application for extension of time in
its wisdom, there was no reason to disturb it later. In the
present case, there is rather a reverse situation wherein the
Trial Court has dismissed the application for extension of time
giving due reasons. In view of above findings, the question as
to whether the Plaintiff-Buyer was required to give notice of
the amount deposited also need not be answered, although
we believe that had the Plaintiff-Buyer, irrespective of any
obligation under law, given notice of the deposit made to the
Defendant-Seller it would have helped the case of the PlaintiffBuyer.
15. Thus, in the present case, the Plaintiff-Buyer has clearly
defaulted on time of depositing as well as the mode of
payment. The decree was self-operative and the suit stood
dismissed for non-compliance of the decree. Further, the
Plaintiff-Buyer also failed to make out a case for condonation of
delay.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3213 OF 2015
(Arising out of SLP(C) No.5840 of 2012)
P.R. Yelumalai … Appellant
:Versus:
N.M. Ravi … Respondent
Citation;(2015) 9 SCC52
Pinaki Chandra Ghose, J.
1. Leave is granted in both the matters.
2. These cross appeals have been filed against the judgment
and order dated 22.08.2011 passed by the High Court of
Karnataka at Bangalore in Writ Petition (Civil) No.6449 of 2010,
whereby and whereunder the High Court of Karnataka has set
aside the order dated 15.02.2007 passed by the Trial Court in
O.S. No.439 of 2006 and remitted the matter to the Trial Court
for disposal afresh in accordance with law.
3. The factual background of the case is that on 04.08.2006,
one P.R. Yelumalai, who is the appellant in the first appeal,
entered into an Agreement of Sale with N.M. Ravi, the
respondent in the first appeal, is the absolute owner of the
property. The total consideration for the sale was
Rs.41,60,000/-, out of which a sum of Rs.8 Lakhs was paid as
advance money towards the total consideration amount.
Thereafter, the Seller vide legal notice dated 04.09.2006
sought to cancel the agreement of sale which was refused by
the Buyer. This led to filing of a suit for specific performance of
the contract by the Buyer P.R. Yelumalai (hereinafter referred
to as “the Plaintiff-Buyer”), before the II Additional Civil Judge
(Sr. Division), Kolar, being O.S. No.439/2006. The Seller N.M.
Ravi (hereinafter referred to as “the Defendant-Seller”)
conceded to the Plaintiff-Buyer’s prayer for performance of the
said agreement stating that he had no objection to the Court
decreeing the suit in favour of the Plaintiff-Buyer. Accordingly,
the suit was decreed on 15.02.2007 and the Plaintiff-Buyer was
directed to deposit the balance sale consideration of
Rs.33,60,000/- by way of demand draft, in Court within one
month from the date of decree and the Defendant-Seller was
directed to execute regular sale deed in favour of the Plaintiff
Buyer, within three months from the date of decree. It was
made clear by the Trial Court in the decree that if the balance
amount of sale consideration is not deposited within one
month from the date of decree, the suit shall be deemed to
have been dismissed.
4. The Plaintiff-Buyer did not deposit the said amount within
one month as stipulated in the decree but he filed an
application for extension of time for depositing the amount of
balance sale consideration and vide order dated 17.03.2007,
the Additional Civil Judge (Sr. Division) extended the time by
two months. After the extension order, the last date for
deposit of the amount fell during the Summer Vacation of the
Court. The Plaintiff-Buyer did not deposit the said amount even
on the re-opening day after Summer Vacation, i.e. 28.05.2007.
But allegedly, he filed a Memo for issue of Receipt Order (R.O.)
for depositing the said amount. However as per the records,
the R.O. was issued on 29.05.2007 and the amount was
deposited on the same day by cash.
5. Admittedly, the Defendant-Seller was not served with a
copy of the Memo and was not notified with regard to thePage 4
4
alleged deposit. The Defendant-Seller sold the property in
question to Sri Rajesh on 20.06.2007, under a registered sale
deed. The Plaintiff-Buyer filed Execution Petition No.88/2008 on
17.03.2008 in the Court of IInd Additional Civil Judge (Sr.
Division), which was dismissed on 20.10.2008. The IInd
Additional Civil Judge observed as follows:
“7. It is also the contention of the J.Dr. there is no
evidence that D.Hr. has deposited the balance
consideration on 29.5.2007. Therefore records in
O.S.439/2006 were secured by the court and perusal
of the same, it is revealed that in the order sheet
after 170/07 there is an endorsement of the office
that consideration amount of Rs.33,60,000.00 is
deposited under J.D.No.177/07 (R.O. No.295806)
dated 29.5.2007 and the same endorsement is
found in the certified copy of the order sheet
produced by the D.Hr. in this case. However, the
counsel for the J.Dr. argued that he has also
obtained copy of the order sheet and in his order
sheet in O.S. 439/06 said endorsement is not there
and therefore, he impliedly contended that
endorsement has been subsequently got written in
the order sheet. However, when there is no
allegation made against the court officials merely
because the endorsement was written in the order
sheet after the certified copy of the order sheet in
O.S.439/06 was issued to the J.Dr. it does not mean
that endorsement is correct. Further it is seen that
J.Dr. has produced the copy of the order sheet
obtained by him in this case and perusal of the same
reveals that he has applied for the copy on
29.5.2007 and obtained it on the same day.
Therefore, there is all the chance that after issuance
of the certified copy of the J.Dr. the deposit of
amount may be noted in the order sheet on the
same date, but after issue of certified copy of the
J.Dr.
It is also the contention of the J.Dr. that even if it is
presumed that vacation period has to be excluded
by calculating the extended period of 2 months,
then D.Hr. was required to deposit the balance
consideration on 28.5.2007 as that was the reopening
day for the civil courts. A perusal of the
calendar of 2007 does reveal that re-opening day
was 28.5.2007 and not on 29.5.2007 as contended
by D.Hr.
9. Thus the D.Hr. is entitled for seeking exclusion
of vacation period while calculating the extended
period of 2 months of deposit of balance
consideration. Admittedly the judgment was passed
on 15.2.2007. However, a perusal of order dated
15.2.2007 makes it clear that period of 1 month
given to plaintiff/D.Hr.to deposit the balance
consideration starting from the date of decree and
not from the date of order dated 15.2.2007, because
order clear states that D.D. of Rs.33,60,000.00 will
have to be deposited within one month from the
date of decree. Further order sheet in O.S.439/06
makes it clear that decree is signed on 27.2.2007.
Therefore, initially the period of one month started
from 27.2.2007 and ended on 26.3.2007 and since
period was extended for 2 months on 17.2.2007
normally last date for deposit of balance
consideration fell on 26.5.2007 and the civil court
was not working on 26.5.2007 and next date i.e.,
27.5.2007 was Sunday.
10. Hence, the D.Hr. was required to deposit the
balance consideration on 28.5.2007, which was the
re-opening day. However, to show that he made
efforts to deposit the balance consideration on
28.5.2007 and made an application for issue of R.O.
on 28.5.2007 itself there is no material placed
before the court by the D.Hr. Hence, as the
endorsement on the order sheet in O.S. 439/06
reveals that R.O. is dated 29.5.2007 and deposit is
made on 29.5.2007 it is clear that even though the
D.Hr. was required to make the deposit on the re-
opening day i.e., 28.5.2007, he has failed to do so
and has deposited it only on the next day….”
6. The aforesaid order of dismissal passed by the Trial Court
on 20.10.2008 in Execution Petition No.88/2008, was
challenged by the Plaintiff-Buyer before the Karnataka High
Court by filing Writ Petition No.13541/2008. The High Court of
Karnataka did not find any error in the order passed by the
Executing Court and dismissed the writ petition on 7.1.2010.
However, it permitted the Plaintiff-Buyer to move the Court
which had passed the decree, for seeking extension of time in
depositing the amount of balance sale consideration.
7. On 10.02.2010, the Plaintiff-Buyer filed an application
under Section 148 of the Code of Civil Procedure (“CPC”, for
short) for extension of time till 29.5.2007. The Additional Civil
Judge (Sr. Division) vide order dated 15.02.2010, rejected the
application for extension of time on the following reasoning:
“Whereas the order of this Court itself is very clear,
that the plaintiff as to deposit the balance amount
within two months from the date of its order. Under
the said circumstances the plaintiff need not wait till
last date, knowing the said day is vacation. Further
the plaintiff has taken chance to deposit on reopening
day, where he could not deposit, but
deposited on the next day without seeking further
extension of time according to his whims andPage 7
7
fancies. Further, the plaintiff has not placed any
materials to show that he had approached the court
on 28.8.07. But the orders sheet at page 8, it reveals
that consideration amount of Rs.33,60,000/- is
deposited under J.D. No.170/07 (R.O. No.0295806
dated 29.5.07). Hence from the said order sheet, it is
clear that the plaintiff has approached the court on
29.5.07 i.e. the very next day of re-opening day,
where there is a delay of one day in depositing of
consideration amount.
Further, the order of Hon’ble High Court in W.P.
No.13541/08 is dated 7.1.2010. Whereas the Hon’ble
High Court of Karnataka held that the trial court shall
pass appropriate orders within one week thereof. But
on perusal of said orders it reveals that the plaintiff
had applied for copy of said order on 4.2.2010 and
obtained copy on 5.2.10 and appeared before this
court with the said orders on 10.2.2010 and filed the
present application for extension of time to deposit
the balance sale consideration amount. But the
plaintiff instead of filing the present application
within one week from the date of order of Hon’ble
High Court, he has filed the present application on
10.2.2010 where there is a delay of more than three
weeks in filing the present application. Though the
plaintiff is aware of the order of the Hon’ble High
Court on 7.1.2010, but he has not applied for
certified copy of the said orders on same day. But he
has applied for the copy of the said order after lapse
of one month which is also delayed by one month.
Therefore, under said circumstances, the plaintiff
has not made out any grounds to allow the said
application for extension of time to deposit the
balance sale consideration amount of
Rs.33,60,000/-.
Thus under the said circumstances the application
filed by the plaintiff U/Sec.151 of CPC is hereby
rejected with costs.”
8. Aggrieved by the said order, the Plaintiff-Buyer again filed
a writ petition before the Karnataka High Court, being WritPage 8
8
Petition No.6449/2010. The High Court remanded the matter
to Trial Court by formulating four questions to be answered by
it, which were: (i) whether the amount deposited on
29.05.2007 amounts to a deemed extension of time and a
valid deposit; (ii )whether one Rajesh who has purchased the
property is a notified purchaser; (iii) whether the appellant is
entitled to extension of time when third party interest is
created; and (iv) whether the suit stood dismissed on
28.05.2007 or earlier when the amount was not deposited in
terms of the decree. The High Court directed the Trial Court to
dispose of the matter within two months from the date of
receipt of the order. Aggrieved by the order of remand passed
by the Karnataka High Court, the parties are before us.
9. The learned counsel for the Plaintiff-Buyer contended that
this is not a proper case to be remanded back to the Trial Court
for fresh consideration and the High Court should not have
remanded the case. He further contended that Execution Case
No.88/08 was solely dismissed on the ground of one day delay
although there were valid reasons for the alleged delay. He
further contended that the High Court failed to appreciate that
the request for issue of Receipt Order (R.O.) on the re-opening
day, is deemed compliance with limitation period as provided
in Section 4 of the Limitation Act and, hence, the High Court
directed the Plaintiff-Buyer to file an application for extension
of time by a single day. This request of the Plaintiff-Buyer to
issue the R.O. on re-opening day is to be construed as deemed
compliance under the Limitation Act read with Section 28(6) of
the Karnataka Civil Courts Act, 1964. Learned counsel for the
Plaintiff-Buyer also contended that the Trial Court also failed to
consider the matter on merits in O.S. No.439/2006 and
dismissed the application for extension of time solely on
technical ground, and in contravention of Section 5 of
Limitation Act. According to the learned counsel, in view of
Section 5 of the Limitation Act, both the Trial Court and the
High Court erred in not condoning the delay from 07.01.2010
to 10.02.2010 in filing the application for extension of time
before the Trial Court. Further, the learned counsel argued that
the acceptance of deposit of money by the Court on
29.05.2007, in itself amounted to implied grant of extension of
time by the Court. In support of the said contention, he relied
on the case of Md. Alimuddin v. Waizuddin and Anr.,
(1998) 9 SCC 108. He also submitted that the procedure
should only be an aid to achieve justice and procedural
technicalities should not be used to abuse the process of law.
On the point of the third party interest being created in the suit
property, he submitted that the purchaser (Sri Rajesh) of the
suit property is not a bona fide purchaser. Alternatively, he
argued that the concept of bona fide purchaser does not find
relevance when the principles of lis pendens apply. He
submitted that as per Section 52 of the Transfer of Property
Act, 1882, no transfer of any immoveable property during the
pendency of any suit or proceeding in relation to that property
can take place except with the authority of the Court in which
such suit or proceeding in pending. On the basis of these
submissions, he contended that the title of the purchaser as
per sale deed dated 20.06.2007 is defective as against him.
10. Learned counsel for the Defendant-Seller, on the other
hand, contended that under Section 28(1) of the Specific Relief
Act read with Section 151 of CPC, the Trial Court alone has
power to extend the time to satisfy the conditional decree.
When the Trial Court had exercised its discretion and granted
extension of two months’ time for making payment of the
balance consideration amount, even then the Plaintiff-Buyer
failed to pay on time and in the prescribed mode. In addition to
this, counsel for the Defendant-Seller contended that the
Plaintiff-Buyer has not given notice to the respondent of
delayed payment by cash. Defendant-Seller had no notice of
delayed payment by cash. The learned counsel submitted that
as per Order XXI Rule 2 of CPC, the judgment-debtor is
required to give notice to the decree-holder of the deposit of
any money in Court. He contended that in the present case,
even though the Plaintiff-buyer is a decree-holder, yet the
obligation of notice would apply to him also. In absence of this
notice, learned counsel contended that the Defendant-Seller
was in his right to sell the property to a third party. He further
reinforces the justification for sale deed dated 20.06.2007 by
pointing out that the decree in this case was a conditional one
and self operative in case of non-compliance. Since, the decree
clearly mentioned that if the amount of balance consideration
is not deposited within the period stipulated therein, the suit
shall be deemed to have been dismissed. The Plaintiff-Buyer
lost his right under the decree as soon as the time granted
under the decree expired by not complying with the decree.
The learned counsel further argued that the mode of deposit of
the amount was not in terms of the decree as the amount was
deposited in cash while the decree required the deposit to be
made in the form of demand draft. Thus, the learned counsel
submitted that the Plaintiff-Buyer had completely failed to
obey the commands in the decree.
11. Arguments were also made by the learned counsel on
both sides as to which Court had the power to grant extension
of time and several authorities were cited on this point.
However, we find that after the execution Court had dismissed
the execution proceeding on the ground of delay in depositing
the amount, the same question was dealt with by the original
side of the Trial Court as well in the application for extension of
time. Since both the Courts have given concurrent findings
that the case for extension of time was not made out, we are
of the opinion that dealing with the question as to which Court
had the jurisdiction to decide this point, will be an exercise in
futility. It would suffice to say that the Court has the discretion
to extend the time upon an application made by the party
required to act within a stipulated time period. Extension of
time can be granted even after the expiry of the period
originally fixed. In Johri Singh v. Sukh Pal Singh and Ors.,
(1989) 4 SCC 403, this Court observed:
“This Section empowers the Court to extend the
time fixed by it even after the expiry of the period
originally fixed. It by implication allows the Court to
enlarge the time before the time originally fixed. The
use of ‘may’ shows that the power is discretionary,
and the Court is, therefore, entitled to take into
account the conduct of the party praying for such
extension.”
12. From a perusal of the judgment and decree dated
15.2.2007 passed by the Trial Court, it is clear that the period
of one month granted for depositing the balance consideration
started from the date of decree. From the records it appears
that the decree was signed on 27.2.2007. Therefore, the
period of one month started from 27.2.2007 and ended on
26.3.2007. After extension of two months was granted, the last
date for depositing the amount of balance consideration fell on
26.5.2007. As the Civil Court was not working on 26.5.2007
and next date i.e., 27.5.2007 was Sunday, the Plaintiff-Buyer
was to deposit the amount on 28.5.2007, which was the reopening
day. However, there is no evidence on record to show
that he made efforts to deposit the balance consideration on
28.5.2007 or made an application on 28.5.2007. The R.O. is
dated 29.5.2007 and deposit was made on 29.5.2007. Thus,
the Plaintiff-Buyer failed to comply with the decree and the suit
stood dismissed automatically.
13. The Trial Court rightly held that the decree-holder did not
make the deposit within the time stipulated by the Court nor
the deposit of the balance consideration was made through
the mode as stipulated by the Court, and that being the case,
the suit will have to be deemed as dismissed. The Trial Court
further held that the decree-holder is not entitled to seek
execution of decree, which does not exist in the eye of law and
consequently the Trial Court dismissed the execution petition.
Further, we have already discussed the order of the Trial Court
in the application for extension of time and we do not take the
contention of the Plaintiff-Buyer that the application was
dismissed solely on the technical ground and that the
application was filed after a delay of 3 weeks. The Trial Court
has discussed full merits of the application and given a finding
that there is no evidence to show that the plaintiff had made
any effort to deposit the amount on the 28.05.2007. The
application was dismissed on its merits and not merely on the
technical grounds. Further, we accept the submission of the
learned counsel for the Defendant-Seller that the PlaintiffBuyer
had even failed to make the deposit through the mode
of payment as required by the decree.
14. Having given above findings, the obvious corollary is that
since the Plaintiff-Buyer failed to comply with the terms of the
decree, the suit stood dismissed as the order passing the
decree was a peremptory order. In light of this, we do not find
it necessary to address the arguments made by the counsel on
the point of bona fide purchaser. Further, the contention that
the acceptance of deposit made by the Plaintiff-Buyer on
29.05.2007 is an implied grant of extension of time is a
misplaced one. Reliance cannot be placed on Md.
Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in
that case there was an application for extension of time which
was granted, though at the risk of the depositor, along with the
deposit of amount. This Court in the said case held that when
the Court had allowed the application for extension of time in
its wisdom, there was no reason to disturb it later. In the
present case, there is rather a reverse situation wherein the
Trial Court has dismissed the application for extension of time
giving due reasons. In view of above findings, the question as
to whether the Plaintiff-Buyer was required to give notice of
the amount deposited also need not be answered, although
we believe that had the Plaintiff-Buyer, irrespective of any
obligation under law, given notice of the deposit made to the
Defendant-Seller it would have helped the case of the PlaintiffBuyer.
15. Thus, in the present case, the Plaintiff-Buyer has clearly
defaulted on time of depositing as well as the mode of
payment. The decree was self-operative and the suit stood
dismissed for non-compliance of the decree. Further, the
Plaintiff-Buyer also failed to make out a case for condonation of
delay. In view of these findings, we are of the opinion that the
questions formulated by the High Court in the order of remand
are not required to be answered by the Trial Court.
Consequently, the appeal filed by the Plaintiff-Buyer is
dismissed and the appeal filed by the Defendant-Seller is
allowed. There shall be no order as to costs.
….....…..…………………..J.
(J. Chelameswar)
...........…………………….J.
(Pinaki Chandra Ghose)
New Delhi;
March 27, 2015.
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