Ratio-Power of Court to grant extension of time.

The petitioner herein filed a suit, O.S. No. 810 of 1968 for a declamation of his title to certain trees and for an injunction restraining the respondent herein from cutting the said trees. After trial, the trial Court decided the suit in favour of the petitioner and the operative portion of its judgment, dated 22nd October, 1970 was as follows:

“ In the result, the plaintiff is entitled to declaration and injunction as prayed for provided he pays the contract amount on or before 23rd November, 1970. Failing which the suit will stand dismissed.”

The petitioner, however, did not pay the contract amount as directed on or before 23rd November, 1970. He, however, chose to file an application on 25th November, 1970 under sections 148 and 151 of the Code of Civil Procedure, to extend the time for depositing the contract amount as per the decree dated 22nd October, 1970. That application has been dismissed by the lower Court on the ground that the order has worked itself out as a result of which the suit stands dismissed, and that it had no power to extend the time at that stage after the suit stood dismissed. It is the said order of the lower Court that is attacked in this revision.

2. It is argued on behalf of the petitioner that the Court has undoubted jurisdiction and power to condone the delay in payment of the amount mentioned in the decree and that the lower Court was in error in refusing to extend the time. The learned Counsel referred to the decision of Kailasam, J., in P. Venkatesan Chetty v. P. Jayaram1, in support of his submission that the Court has got the undoubted power to extend time for payment of the decree amount notwithstanding the default clause. But, on a perusal of the said decision it is seen that there was no default clause in the decree such as the one in this case. In that case the direction was:

“The plaintiffs will pay a sum of Rs. 5,000 to the defendant within two months from this date. On payment of the amount, there will be a decree that the plaintiffs are entitled to the entire suit house. The defendant will not be liable to pay any mesne profits from this date.”

When the plaintiffs had sought an extension of time beyond two months for payment of the amount the Court extended the time notwithstanding the fact that the time already granted had expired. Hence that decision does not touch the question arising in this case.

3. The learned Counsel then refers to the decision in Abdul Shaker v. Abdul Rahiman2, in which a Division Bench of this Court held that where a plaintiff was given a decree for specific performance of a contract to sell on condition of his paying a certain amount to the defendant within a specified time, the Court was empowered to extend the time in appropriate cases as the decree in such cases is in the nature of a preliminary decree, and the Court has still control over the action and has full power to make any just and necessary orders therein, including orders of extension of time. In that case the trial Court has passed a decree in favour of the plaintiffs for specific performance of a contract for sale of certain lands and superstructure thereon to them by the defendant and the operative portion of the judgment was as follows:-

“I must therefore find for the plaintiffs and give them decree for specific performance on payment of Rs. 4,000. Time for payment two months.”

In pursuance of this judgment a decree was passed fixing time for payment of the amount till 19th December, 1921, and directing that upon such payment the defendant had to put the plaintiffs in possession of the properties together with all documents and title deeds. The said decree was construed by the Court as being in the nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders, and it was held that so long as no final orders have been passed terminating the proceedings, the Court has got the power to extend the lime, Wallace