The time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree.

K.Ahmad, J.

1. This appeal is by the decree-holders. The main point involved in this case is whether the time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree.

2. The facts giving rise to this appeal are as follows : -- There was a suit instituted by the decree-holder for the specific performance of a contract of sale of some agricultural lands. At the trial the suit was dismissed, but in appeal the judgment given by the trial court was reversed and the appellate Court came to the view that the suit should stand decreed. This was on the 31st January; 1955. The exact operative portion of the order passed in appeal was in these words : --

"The result is that the findings and judgment of the learned lower Court are reversed. The plaintiff is entitled to specific performance of her contract and her suit is to be decreed with costs and pleaders fee at the minimum contested scale. Plaintiff is directed to deposit Rs. 300.00 as the balance of the consideration money within a month of this order. Defendants 1, 2 and 3 are directed to execute a sale deed for the suit land in favour of the plaintiff failing which the sale-deed will be executed through Court. This appeal is accordingly allowed with costs and pleaders fee Rs. 24/-."

It is the admitted case of the parties that the sum of Rs. 300.00 referred to in the order passed by the appellate Court was not deposited by the vendee in time as stipulated therein. It is said that the decree-holder thereafter on the 22nd March, 1955, for the first time put in an application for permission to deposit that amount praying therein that for the reasons as stated by him in that application, the time granted by the Court of appeal should be extended. This application was taken up for orders on the 23rd March, 1955. The Court, on hearing the parties, passed the following order on the same day -

"Record received from the Court of the 2nd Additional Subordinate Judge Sasaram. Plaintiffs petition dated 22-3-55 for issue of chalan for deposit of the balance of the consideration money as ordered by the trial court amounting to Rs. 300/-put up. Order : Issue chalan at the plaintiffs entire risk."

The decree-holder, in pursuance of the aforesaid order, it is not denied, did deposit money on the 24th March, 1955. Thereafter, on the 8th June, 1955, the decree-holder put in an application for the execution of the decree which related to the performance of the contract in his favour. This application was numbered as Execution Case No. 45 of 1955. While this execution application was pending, a miscellaneous proceeding was started at the instance of the judgment-debtor with the plea that the execution petition was not maintainable in law in view of the fact that the performance of the contract by the defendants was subject to the payment of Rs. 300.00 as decreed by the appellate Court and as the same was not paid within the period stipulated in the decree passed by the appellate Court, the decree as passed thereunder was not executable.

This objection against the execution of the decree in substance was based on the contention that the Court had no jurisdiction to extend the time which was fixed by the appellate Court for the payment of Rs. 300/-. In other words, the provisions of law as laid down in Sec.148 of the Code of Civil Procedure did not apply to the facts of the case. That being so, any payment made by the decree-holder subsequent to the period fixed by the appellate Court was not payment in the eye of law. The Court of execution accepted this contention raised by the judgment-debtor, and in doing so observed that ".......... even if she was ill, in my opinion time cannot be extended. A court which passes a decree for specific performance of contract to sell lands has no power or jurisdiction to extend the time fixed for payment of the purchase money, nor can an appella