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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
B.V. Gururaj & Others
Versus
M.R. Rathindran & Others
No : C.R.P.(NPD)No.1195 of 2009 & M.P.No.1 of 2009 & C.R.P.(NPD) No.2494 of 2008
Decided on : 25-11-2009
(B)Specific Relief Act, 1963(47 of 1963)-Sec.28-Code of Civil Procedure, 1908(5 of 1908)-Sec.151-Specific performance-Decree-Nature-Extension of time-Court-Power-Decree for specific performance is in the nature of preliminary decree-The Court passing the decree for specific performance could extend the time granted to comply with the decree even without any formal application in this regard.
The Court which passed the decree for specific performance of contract never becomes functus officio, that passing of such decree is a stage in preliminary decree and when no default could be inferred on the part of the decree-holder, extension of time could not be refused to him, and that even without a formal application for extension of time, the time could be extended by the Court. The Supreme Court in the said case has observed that it is perfectly open to the Court in control of suit for specific performance to extend the time for deposit and the Court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour. Para 22
(C)Specific Relief Act, 1963(47 of 1963)-Sec.28-Specific performance-Decree- Recession-Limitation- Commencement-Limitation to apply for recession of the decree for specific performance by the defendant would start from the date of the decree by the trial Court.
In the considered view of this Court, the right to apply for the defendants accrued on the passing of the decree for specific performance of contract. No right could be stated to accrue from the date of rejection or dismissal of the interlocutory applications, which have no bearing on the filing of necessary petition by the defendants under Section 28(1) of the Act. In these circumstances, it is held that the petition in I.A.No.270 of 2008 has not been filed within time and the same is barred by limitation.
Para 28
(D)Specific Relief Act, 1963(47 of 1963)-Sec.28-Code of Civil Procedure, 1908(5 of 1908)-Sec.151-Specific performance- Immovable property-Sale-Extension of time-Court-Power-Appeal-Courts can extend the time to comply with the decree for specific performance even at the appellate stage and also while disposing of the petition filed by the defendant for recession of the contract.
As per the decisions, the power of the Court to extend the time is always existing and the same could be exercised even in the appellate stage by the Court. Since the Court is very much competent to extend the time pursuant to the dismissal of the petition for rescission of contract, directing deposit of the sale consideration along with interest within time frame is lawful. Para 29
In view of the interconnectivity of the issue involved in these cases, by consent of both parties, a common order is bing passed.
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2. For the sake of convenience, the parties are referred to in this judgment as per their litigative status in the original suit.
3. Theplaintiffs filed O.S.No.792 of 2004, on the file of the Sub Court, Coimbatore, for specific performance of contract against the defendants on the strength of an agreement for sale executed by the defendants on 210. 1994. The suit was decreed as prayed for on 112. 2004 after contest, directing the defendants to execute the sale deed as per the sale agreement, after receiving sale consideration of Rs.24,22,000/- within one month from the date of decree and the defendants 1 to 4 to execute the sale deed pertaining to their undivided 7/8th share in the plaint schedule property in favour of the plaintiffs within one month from the date of decree. There was no appeal from the said decree.
C.R.P.No.2494 of 2008
4. The plaintiffs filed a petition in I.A.No.137 of 2005 under Section 151 CPC seeking two months time and on that petition, the Court extended the time till 16.03.2005. It is alleged by the plaintiffs that since the defendants did not come forward with the Patta Pass Book for the properties, which was required by the Registering Authority, they were constrained to seek further time. On 16.03.2005, another petition was filed by the plaintiffs in I.A.No.270 of 2005 under Section 151 CPC for grant of three weeks further time for having the sale deed executed, from 16.03.2005. The petition had been adjourned from time to time and finally on 18.06.2007, it was dismissed as infructuous under observation that the petitioners have requested time from 16.03.2005, but, two years have elapsed since the filing of the application.
5. Thereafter, the plaintiffs filed another petition under Order 9, Rule 9, Section 151 CPC to set aside the order of dismissal on 18.06.2007. The said petition was not numbered, but it was rejected on 27.07.2007 by the Court below by stating that since I.A.No.270 of 2005 was dismissed as infructuous, restoring the said petition does not arise. The said order is challenged before this Court by the plaintiffs in C.R.P.No.2494 of 2008.
.C.R.P.No.1195 of 2009
6. The defendants filed a petition in I.A.No.270 of 2008 under Section 28(1) of Specific Relief Act read with Section 151 CPC for rescission of contract and also for a direction to restore the possession in their favour. In the affidavit, they have alleged that the plaintiffs did not pay the amount as directed by the decree and that the time fixed by the Court expired on 16.01.2005. However, the plaintiffs filed petition for extension in I.A.No.270 of 2005, but, it was dismissed. The defendants preferred C.R.P.No.558 of 2006, before the High Court, pending enquiry in I.A.No.270 of 2005 for a direction for expeditious disposal of the said interlocutory application. The High Court directed the Trial Court to pass appropriate orders in the application for extension of time.
1. It is further averred that the area, where the property in question is situated, has developed to a greater extent, that its value has gone up several times, that important bye-pass roads also have been provided, that therefore, the contract relied on by the plaintiffs have to be rescinded, that the plaintiffs have not complied with the terms of the decree, that they have deliberately delayed their obligations and that the same resulted in serious inconvenience to the petitioners.
7(i). The plaintiffs filed a counter to the said petition by stating that the other parties to the sale agreement as well as suit have not been impleaded purposely and on that score, the petition is liable to be dismissed, that the property was delivered in part performance of the sale agreement and the plaintiffs are in possession, that since the defendants did not produce Patta Pass Book to complete the sale, it could not be
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