IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25569 of 2009(O)
1. K.SREEDEVI, D/O.BHARGAVI AMMA,
... Petitioner
Vs
1. V.VELAYUDHAN, S/O.VELU, RESIDING AT
... Respondent
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.JOHNSON P.JOHN
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :23/09/2010
O R D E R
HARUN-UL-RASHID,JJ.
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W.P.(C) NO.25569 OF 2009
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DATED THIS THE 23RD DAY OF SEPTEMBER, 2010
JUDGMENT
Petitioner herein is the plaintiff in O.S.No.333/02 on
the file of the Munsiff’s Court, Alathur. The suit was filed for
specific performance of the contract of sale against the respondent.
Ext.P1 is the copy of the decree passed in the suit. The decree inter
alia directed the plaintiff to deposit the balance sale consideration
of Rs.4,000/- in court within one month taking note of the fact that
a sum of Rs.36,000/- had already been paid as advance. Since
there was no appeal, Ext.P1 decree has become final. The plaintiff
did not deposit the balance sale consideration as directed in the
decree. After five years and three months, he filed I.A.No.994/08
seeking permission of the court to deposit the balance sale
consideration of Rs.4,000/- and to condone the delay of five years
and three months in making the deposit. Ext.P2 is the photocopy of
I.A.No.994/08 .
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2. The learned counsel for the petitioner submitted that
the respondent has not filed any application to rescind the contract
either on account of the delay in making the deposit or on any other
ground under Section 28(1) of the Specific Relief Act. Ext.P4 is the
order passed by the Munsiff’s Court, Alathur in Ext.P2. The court
below, after considering the reasons stated for the delay in
depositing the balance sale consideration, held that there is no just
and sufficient reasons to condone the delay of more than five years
and three months and to permit the petitioner to deposit the balance
sale consideration by enlarging time.
3. It is pointed out by the learned counsel for the
petitioner that the court below did not consider the reasons stated in
the application liberally. The learned counsel also pointed out that
it is settled by decisions that the power to extend the time is inbuilt
in Section 28 of the Specific Relief Act itself, that the power under
Section 28 of the Act is discretionary and the court cannot
ordinarily annulled the decree once passed by it and that the court
does not seize to have the power to extend the time even though the
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decree provides that the payment of balance price to be made by
certain dates. The learned counsel submitted that inbuilt power of
the court to extend the time especially when the court retains
control in a suit for specific performance till the decree is executed
or rescinded ought to have been exercised liberally. He also
pointed out that this is particularly so when no application was filed
by the respondent to have the contract rescinded and the delay in
making the deposit deserves to be condoned. It is also pointed out
that the condonation of delay under Section 28 of the Specific
Relief Act stands on a different footing in contra distinction to the
condonation of delay under Section 5 of the Limitation Act.
According to him, Ext.P4 order suffers from an error of jurisdiction
and deserves to be set at naught in exercise of the power of
superintendence of this Court. Learned counsel for the petitioner
relied on the decisions reported in Joseph George v. Chacko
Thomas (1992 (1) KLT 6), Jayaprakash v. John (1999(2) KLJ
533), Chitambaran v. Viswambharan (AIR 2001 Kerala 205)
and Chanda v. Rattni ((2007) 14 SCC 26) in support of his legal
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contentions.
4. In view of the legal position as pointed out by the
learned counsel for the petitioner this Court is of the view that the
matter requires re-consideration. In the circumstances, the
impugned order (Ext.P4) is set aside. The Munsiff’s Court,
Alathur, after examining the contentions of the parties and after
examining the legal position as laid down in the aforesaid
decisions, shall dispose of I.A.No.994/208 on merits, within a
period of three months from the date of receipt of a copy of this
judgment. The learned counsel for the respondent submitted that he
proposed to file a petition to rescind the contract. The submission
is recorded.
Writ petition is disposed of as above.
HARUN-UL-RASHID,
Judge.
kcv.