A court has no power to grant an extension of time for payment under a self-operative and final decree for specific performance that provides for automatic dismissal of the suit upon non-payment within the time fixed.

JUDGMENT - 1. This is an application to revise an order passed by the learned District Judge, Parbhani, reversing the order of Mr. S.Y. Gambhir, Civil Judge (J. D.). Sailu, dated the 30th of August 1969 refusing to grant extension of time under a decree for specific performance on the ground that the Court had no power to do so. It is not necessary for the purpose of this application to state the facts prior to the decree. Suffice it to say that, on the 30th March 1968, a conditional decree for specific performance was passed in favour of the present respondent which was in the following terms :-

"Defendant shall execute a sale deed in respect of the suit land in favour of the plaintiff. The plaintiff shall deposit in Court the costs for the execution and the registration of the sale deed within one month from this date. In case the plaintiff fails to deposit the costs in Court defendant shall excute the sale deed and get it registered. In case of failure of the defendant so to do, plaintiff should be entitled to get the sale deed executed and registered in execution of the decree through Court."

It is an admitted position that the plaintiff (present respondent) 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 on the 6th of September 1968, he filed an application praying for condonation of delay in depositing the said costs within the time fixed by the decree, on the ground that after the date of the decree he had been ill and there was no other person available to him to make the deposit on his behalf. It may be mentioned that on the same day, the plaintiff also filed an execution application requesting the court to direct the defendant to execute the necessary sale deed in terms of the decree. Both the applications were opposed by the defendant present petitioner who contended that, in view of non-compliance with the terms of the decree, the suit automatically stood dismissed at the end of one month from the date of that decree and the court had no jurisdiction to condone the delay, or to extend time, as applied for. The learned trial judge upheld that contention of the defendant and rejected the application for extension of time. As a necessary corollary, he also dismissed the execution application. On appeal to the District Court, the learned District Judge, relying on the decision of a single judge of this court in the case of Babulal V. jagannath, (1970) 72 Bom LR 835, held that in view of the provisions of section 28 (1) of the specific Relief Act, 1963, the decree was not a final decree and the court had jursidiction to grant extension of time. He, therefore remitted the proceedings back to the trial court for the disposal of that application of merits, it is against that order that the original defendant has approached this court in revision.

2. Under Section 28 of the specific relief Act, 1963, at the time of passing a decree for specific performance of a contract for the sale of immovable property, the court has undoubtedly the power to direct payment by the purchased of the price or other sum by a fixed date. The said section, however, proceeds to lay down that, in such a case, if the purchaser fails to pay the amount within the time fixed by the decree for specific performance, the vendor could apply in the same suit to have the contract rescinded and, on such application, the court may order rescission of that contract and proceed to give consequential directions for the restoration of any benefits received thereunder.

3. In the case of Babulal V. Jagannath cited by me earlier which was relied upon by the lower appellate court, the facts were, no doubt identical with the facts of the present case. Relying upon the language of Section 28 (1) my brother Bhole held (at P. 837) that the terms of the said section itself clearly contemplated that the court had the power to grant an extension of time. He also referred to certain o

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