JUDGMENT
A.D. Tated, J.
1. This appeal is directed against the judgment and order dated 15th March, 1980 passed by the learned District Judge, Satara, dismissing Civil Appeal No. 43 of 1979 arising out of an order dated 2nd January, 1979 passed by the learned Civil Judge (Junior Division), Karad, in Regular Darkhast No. 68 of 1975 whereby he directed the Darkhast to proceed for recovery of the remaining amount of costs of Rs. 80.75 from respondent No. 1 (judgment debtor) and rejected rest of the prayers which included execution of reconveyance deed by the judgment-debtor in favour of the appellant (decree-holder No. 1). Respondent No. 1 is the original defendant (judgment-debtor). Respondent Nos. 2 to 7 are original plaintiff Nos. 2 (B to F) and 2-A and 3 (decree-holder Nos. 2 (B to F) & 2-A and 3). To-day at the hearing the learned Counsel for the respondent No. 1 Mr. K.J. Adhyankar submits that neither the first appeal before the District Court nor the second appeal before this Court is tenable after the amendment of the Civil Procedure Code by Amendment Act 104 of 1976 which came into fore on 1st February, 1977. Thereupon the learned Counsel for the Appellant prays that he be permitted to convert this second appeal into writ petition against the order of the learned Civil Judge, J.D., Karad, rejecting part of his execution application. He is permitted to convert this second appeal into writ petition and he agrees to file the necessary memo during the course of the day.
2. The appellant who is hereinafter referred to as “the petitioner (plaintiff No. 1)” owned along with other plaintiffs Survey No. 236/1 admeasuring 1 acre assessed at Rs. 5-11-00 which is of the village Nandgaon in Karad Tahsil of Satara District as their ancestral property. The plaintiffs were in need of money. They approached their cousin, the respondent No. 1 (defendant) for raising the amount required by them. The defendant obtained sale-deed in respect of the suit from Narayan and Daji on 19th March, 1965 and on the same day the purchaser executed an agreement in favour of the plaintiffs by which he promised to reconvey the suit land to the plaintiffs within a period of 5 years on receiving the amount paid by him to Narayan and Daji. After the stipulated period of five years was over, the plaintiffs approached the defendant and asked him to reconvey the suit land on receiving Rs. 5000/-. The defendant having refused to reconvey the suit land, the plaintiffs instituted a suit for specific performance of the agreement for sale dated 19th March, 1965 and also for getting possession of the suit land from the defendant. The defendant resisted the suit and denied that he agreed to reconvey the suit land to the plaintiffs. The learned Civil Judge found in favour of the plaintiffs and held that the plaintiffs were entitled to the reconveyance of the suit land and were also entitled to get possession of the suit land on payment of Rs. 5000/-. However, as per the agreement of reconveyance, the plaintiffs were entitled to get rebate of Rs. 150/- per year after the expiry of the period of 5 years. The learned trial Judge miscalculated the period of five years and stated that it expired on 19th March, 1969 and on that basis he held that it was 3rd year after the expiry of the term of five years and the plaintiffs were entitled to a rebate of Rs. 450/-. After deducting Rs. 450/- from the purchase money of Rs. 5000/-, he ordered the plaintiffs to deposit Rs. 4550/- within a period of one month from 12th February, 1973. He further directed that on their depositing the said amount within the aforesaid time, the defendant do reconvey the suit land in favour of the plaintiffs by making an application to the Collector for transferring the suit land in favour of the plaintiffs as required by section 31 of the B.P.F. and C.H. Act read with Rule 27(2)(e) of the B.P.F. and C.H. Rules, 1959 and by executing a registered sale-deed in favour of the plaintiffs. He further directed that the defendant should apply to the Collector as directed above within a period of one month from the date of the deposit of the amount of Rs. 4550/-. He further directed that in case the defendant failed to made such application, the plaintiffs would be at liberty to make an application to the Collectors as “person interested in the transfer of Block No. 553 of Nandgaon” and to obtain permission for the transfer of the suit land from the Collector. Upon their obtaining such permission, the plaintiffs were held to be entitled to get the suit land reconveyed to them as provided by Order 21, Rule 32 of the Civil Procedure Code. The Court further ordered that after getting the sale-deed executed, the plaintiffs would be entitled to get possession of the suit land. He directed the defendant to pay the costs of the suit to the plaintiffs and bear his own. At the end he directed that in case the plaintiffs failed to deposit the aforesaid amount within the aforesaid period, the suit would stand dismissed with costs.
3. The defendant preferred an appeal to the District Court which was Civil Appeal No. 92 of 1973. The learned Assistant Judge who heard the appeal found that there was some mistake in calculating the years for which the plaintiff was entitled to get rebate are the rate of Rs. 150/- per annum. He found that five years period expired on 19th March, 1970 and not on 19th March, 1969 and therefore the plaintiffs were entitled to rebate for two years only and not for three years as was ordered by the trial Court and as such the amount of Rs. 300/- only was liable to be deducted from the amount of Rs. 5000/- leaving the amount of Rs.- 4700/- to be deposited by the plaintiffs for being paid to the defendant towards the price of the land. He, therefore, modified the decree of the trial Court and substituted the figure of Rs. 4700/- in place of Rs. 4550/- occurring in the decree of the trial Court. Rest of the decree with that modification was confirmed.
4. The plaintiffs (decree-holders) as per the decree passed by the trial Court deposited Rs. 4550/- with the Court within a period of one month from the date of the decree as directed by the trial Court. As per the modification made by the Appeal Court raising the amount of Rs. 4550/- to Rs. 4700/-, the plaintiffs were liable to deposit an additional amount of Rs. 150/- to make the deficit towards the purchase money of Rs. 4700/- which they deposited on 13-6-1975. The plaintiff (decree-holder No. 1) filed Darkhast No. 68 of 1975 for execution of the decree passed in his favour but the darkhast was opposed by the judgment-debtor, inter alia, on the ground that the decree-holders did not deposit the additional amount of Rs. 150/- required to be paid as per the modification made by the Appeal Court within the period of one month and as such the suit of the plaintiffs would stand dismissed and the plaintiffs were not entitled to execute the decree for reconveyance of the suit property. The objection prevailed with the learned Civil Judge, (Junior Division), Karad, and he allowed the darkhast to proceed only for the recovery of the cost of Rs. 80.75 from the defendant (judgment-debtor) and rejected the order prayers including the prayer for reconveyance made by the decree-holder in their darkhast. The appeal preferred by the decree-holders against the order of the learned Civil Judge was dismissed by the learned District Judge, Satara on 15th March, 1980. Thereafter decree-holder No. 1 filed the second appeal in this Court and today it has been converted into writ petition.
5 The learned Counsel for the petitioner (decree-holder No. 1) contends that the learned trial Judge directed the plaintiffs (decree-holders) to deposit Rs. 4550/- with one month and accordingly they deposited the said amount within one month. That amount was raised by the Appeal Court to Rs. 4700/- and while raising the amount to Rs. 4700/-, the Appeal Court did not fix any time for depositing the additional amount of Rs. 150/-. He submits that the decree- holders (plaintiffs) deposited the additional amount of Rs. 150/- on 13th June, 1975 . He submits that the Court permitted the decree-holders to deposit the additional amount of Rs. 150/- on 13th June, 1975 and according to him the additional amount of Rs. 150/- was deposited by the decree-holders within the reasonable time from the date the Appeal Court decided the appeal and raised the amount from Rs. 4550/- to Rs. 4700/- on 14th October, 1974. He submits that as the learned Assistant Judge who decided the appeal did not fix any time for depositing additional amount of Rs 150/-, the decree-holders could deposit that amount within a reasonable time and they had accordingly deposited the amount on 13th June, 1975. Therefore, according to him, the courts below were not right in refusing to grant reconveyance of the property to the plaintiffs, as per the decree passed by the trial Court and confirmed in appeal.
6. The learned Counsel for the respondent No. 1 on the other hand contends that the learned Assistant Judge by his judgment and order dated 14th October, 1974 modified the decree of the trial Court and substituted the figure of Rs. 4700/- for the figure of Rs. 4550/- appearing in the decree of the trial Court and with the modification he had maintained the decree of the trial Court. According to the learned Counsel, the direction of the trial Judge to deposit the purchase money within one month from the date of the decree also applied to the amount of Rs. 4700/- which the Appeal Court had substituted for the amount of Rs. 4550/- and as the plaintiff failed to deposit the additional amount of Rs. 150/- with the Court with one month of the passing of the appellate decree it must held that the plaintiffs did not comply with the direction of the Court to deposit the amount within one month and as such the suit stood dismissed with costs, this being one of the direction of the trial Court in the event of the plaintiffs failing to deposit the amount within the stipulated time. Thus, the learned Counsel for respondent No. 1 contends that the courts below were right in rejecting plaintiffs-decree holders’ claim for execution of the decree for reconveyance of the suit land. The learned Counsel contends that in view of the decision of this Court in Bhujangrao Ganpati v. Sheshrao Rajaram, 75 Bom.L.R. 772, the decree in the present case being self-operative final decree providing for dismissal of suit if payment under it was not made in time fixed, the Court could not extend the time for payment and as such the lower Court was right in refusing the execution of the decree for specific performance on the ground that the plaintiffs did not deposit the amount within the time fixed by the trial Court. The decision relied on by the learned Counsel supports his contention that where there is self-operative final decree providing for dismissal of the suit if payment under it was not made within the time fixed, the Court could not extend time for payment and the suit would stand dismissed.
7. The learned Counsel for the petitioner contends that in the present case there is no default on the part of the decree-holders. The decree-holders deposited the amount ordered by the trial Court within one month as per the order of the trial Court. According to him, as the decree-holders fully complied with the directions of the trial Court by depositing the amount within one month, the decision relied on by the learned Counsel for the respondents did not apply to the facts of the present case. He submits that the appeal Court while enhancing the purchase money amount by Rs. 150/- did not fix any date within which the additional amount was to be deposited with the Court. He submits that by substituting the figure of Rs. 4700/- in place of Rs. 4500/- it cannot be construed that the additional amount of Rs. 150/- was to be paid within one month from the date of the Appeal Court decree. He submits that had the learned Appellate Judge intended that the additional amount of Rs. 150/- should be paid within one month of the day he decided the appeal, he would have made a specific direction to that effect. He submits that in the absence of any direction by the Appellate Court that the additional amount of Rs. 150/- should be paid within one month of the appellate decree, on the basis of the similar direction by the trial Court, it cannot be held that the Appellate Court must be deemed to have embodied the same direction in the decree passed by him in the appeal. He submits that the direction to pay the amount of Rs. 4550/- was made by the trial Court thus :-
“The plaintiffs do deposit in the Court Rs. 4,550/- within the period of one month from to-day.”
The word “today” means the day on which the learned Judge delivered the judgment i.e. on 12th February, 1973. The period of one month stipulated by the trial Judge expired on 12th March, 1973. He submits that by any stretch of imagination it cannot be said that the same period of one month for payment of the additional amount was fixed by the Appeal Court and that the period is to be computed from the day the appeal was decided. Thus, according to him, there was no period fixed by the Appeal Court for depositing the additional amount of Rs. 150/- and as such the decree holders were entitled to deposit the amount within the reasonable time. He referred to the provisions of section 28 of the Specific Relief Act, 1963 and submitted that the decree in a suit for specific performance was a preliminary decree and the Court could fix the period or date within which the vendee should deposit the purchase money and such period could be extended by the Court and in case the Court on the application made by the judgment debtor (defendant) thought that the decree-holder not pay the amount within the period stipulated in the preliminary decree or the period extended by the Court, it was entitled to rescind the contract and pass suitable orders as provided in section 28 of the Specific Relief Act. He submits that in the present case the judgment-debtors never applied under section 28 of the Specific Relief Act for rescinding the contract. According to him the decree-holders were allowed by the Court to deposit the additional amount of Rs. 150/- and that deposit was made within a reasonable time and as such the judgment-debtors wee not entitled to oppose the execution of the decree on the ground that the additional amount of Rs. 150/- was not paid within the time stipulated by the Court.
8. The learned Counsel for the petitioner contends that in a suit for specific performance, where purchaser plaintiff succeeds in obtaining a decree for specific performance it is not proper for the Court to direct that on failure to deposit the amount within a particular time the suit shall stand dismissed. In support of his contention he relies on the decision in (K. Saraswathi (alias) K Kalpana v. P.S.S. Somasundaram Chettiar)2, 1977 Madras Law Journal (Vol. II) 68. It was a suit for specific performance of an agreement if sale and the decree fixed time limit for depositing the amount and further provided that in default of deposit within the prescribed time, the suit shall stand dismissed. Their Lordships of the Madras High Court on considering decisions of various High Courts and the Supreme Court decision in Mahant Ram Das v. Ganga Das, , held that a decree for specific performance was in the nature of a preliminary decree. That the mere passing of such a decree did not put an end to that suit and that the trial Court retained complete control over the entire proceedings so as to adjudicate upon the rights of the parties arising out of the preliminary decree passed by it. Their Lordships also considered the provisions of section 28 of the Specific Relief Act and on page 85 of the report observed thus :—
“The only other question is, whether the learned Judge had jurisdiction to provide that the suit shall stand automatically dismissed, if the appellant committed default in making the payment within the time stipulated in the decree. Having regard to the decisions, which we have referred to already, holding that the decree in a suit for specific performance is in the nature of a preliminary decree, and also having regard to the express provisions contained in section 28 of the Specific Relief Act, 1963, which constitute the statutory crystallization of the legal position in this behalf. We are clearly of the opinion that the learned Judge had no jurisdiction to provide that if the appellant committed default in making the deposit within the time stipulated in the decree, the suit shall stand dismissed, since that will destroy the character of the decree as a preliminary decree and disable the Court from granting the reliefs provided for in section 28(3) as occasion may warrant.”
In Bhujangrao Ganpati v. Sheshrao Rajaram, 75 Bom.L.R. 772 relied on by the learned Counsel appearing for respondent No. 1 it was not canvassed that the learned trial Judge had no jurisdiction to provide that the suit shall stand dismissed automatically if the decree-holder committed default in making payment within the time stipulated in the decree and there is no other authority of this Court directly on the point. Taking into consideration that a decree for specific performance is in the nature of a preliminary decree and the parties thereof can take recourse to the provisions of section 28 of the Specific Relief Act, I am in agreement with the decision of their Lordships of the Madras High Court that in a decree for specific performance the Court could not provide that on failure to deposit amount within a time stipulated the suit shall stand dismissed , since it will take away the character of the decree as preliminary decree and disable the Court from granting a decree provided for in section 28 of the Specific Relief Act. In the present case it is not necessary to go to the extent of saying that the direction given by the trial Court that in case the decree holders did not deposit the amount within one month of the date of the decree the suit shall stand dismissed with costs was without jurisdiction and bad in law. In the present case the decree-holders fully complied with the direction of the trial Court to deposit the amount of Rs. 4550/- within one month from the date of the decree. The dispute is only regarding the payment of additional amount of Rs. 150/- on account of enhancement of purchase money by the Appellate Court from Rs. 4550/- to Rs. 4700/-. When the decree-holder had already deposited full amount as per the order of the trial Court within one month of the date of the decree as per the order of the trial Court, it was necessary for the Appeal Court while enhancing the amount by Rs. 150/- to direct as to within what period the additional amount should be deposited with the Court. The Appeal Court did not provide for any fixed time for the deposit of the additional amount of Rs. 150/- and, therefore, the decree-holder could deposit the amount within a reasonable time. In case the judgment-debtor thought that there was undue delay in depositing the additional amount of Rs. 150/-, he should have applied under section 28 of the Specific Relief Act for recession of the contract and other consequential reliefs. No such application was made by the judgment-debtor and there was no recession of the contract. The additional amount of Rs. 150/- as per the order of the Appeal Court was deposited by the decree holders within a reasonable time and, therefore the decree-holders were entitled to execute the decree for specific performance in their favour. They could not be non-suited on the ground tat they did not deposit additional amount of Rs. 150/- within one month of the Appeal Court decree. In this view of the matter, I find that the learned trial Judge had acted with material irregularity in the exercise of jurisdiction in not granting the execution of the decree for specific performance obtained by the plaintiffs in Regular Civil Suit No. 95 of 1970 and confirmed in appeal No. 92 of 1973 on the file of the District Judge, Satara. Hence the impugned order dated 2nd January, 1979 passed by the Civil Judge, Junior Division, Karad, and confirmed in appeal by the District Judge, Satara, is set aside and the Civil Judge, J.D., Karad, is ordered to proceed further with the darkhast proceedings. As the matter is pending for the last more than 10 years, the Court shall proceed with the darkhast proceedings as expeditiously as possible. Rule is made absolute with costs.