ORDER
S.V. Maruthi, J.
1. This is an application filed by the respondent seeking time for deposit of the balance of the sale consideration pursuant to the judgment and decree dated 8-4-1994 in S.A. No. 507/90.
2. The facts in brief are: A suit was filed for the specific performance of an agreement which was decreed. The defendant went in appeal, which was dismissed by the Addl. District Judge in A.S.No. 25/87. He filed a further appeal i.e. Second Appeal No. 507/90. The second appeal was also dismissed.
3. The trial Court while decreeing the suit for special performance granted 3 months time form the date of judgment for depositing the balance of sale consideration. The second appeal was dismissed by this Court on 8-4-1994. The original suit was decreed on 6-7-1987. However, while dismissing the second appeal, no time limit was fixed for depositing the balance of sale consideration. The present application is filed stating that by oversight, no request was made for granting time to deposit the balance of sale consideration and therefore, he should be permitted to deposit this balance of sale consideration within four weeks from the date of filing of the said application. The said application was filed on 14-9-1995.
4. The Counsel appearing for the appellant opposed the application on the ground that it is a case where the decree passed by the trial Court was confirmed both by the Appellate Court as well as the High Court and therefore the time runs from the date of the original decree and since it has already expired, this Court cannot grant extension of time. In support of his contention, he relied on Nagura Appa v. Namdev, AIR 1959 SC 50 wherein the Supreme Court considered the effect of appeal on time fixed for payment and effect of failure to deposit within the time allowed. The learned Counsel submitted that in view of the above, this Court has no power to extend the time granted by the trial Court while decreeing the suit for specific performance. The Counsel also submitted that he has already filed an application under Section 28 of the Specific Relief Act, 1963 seeking rescission of the contract. Therefore, no extension can be granted.
5. It is true in Nagura Appa’s case, AIR 1959 SC 50 it was observed that the argument that the appellant was justified in not depositing the amount within the time fixed by the decree as he has filed an appeal cannot be sustained as mere filing of an appeal does not suspend the decree for pre-emption and unless that decree is altered in any manner by the Court of appeal the pre-emptor is bound to comply with its directions with regard to the deposit of amount within the fixed time. It was also held that the dismissal of the suit for not depositing the sale price within 2 months from the date of the decree for pre-emption is not by reason of any decision of the Court, but the dismissal of the suit is as a result of the mandatory provision of Order 20 Rule 14. In other words, according to the learned Judges in any suit for pre-emption, if time is granted by the trial Court for deposit of the sale price and if the amount was not deposited within the time fixed by the trial Court on the ground that the appeal has been filed, the dismissal of the suit is on account of the mandatory provision under Order 20 Rule 14 of C.P.C. and not by the decision of the Court. This judgment is not applicable to the facts of the present case as it was dealing with a case of suit for pre-emption, which is governed by a specific provision under Order 20 Rule 14 C.P.C. The present case is a suit for specific performance of the contract. under Section 28 of the Specific Relief Act, power is conferred on the Court to extend the time for the payment of purchase money or other sum. Section 28 of the Specific Relief Act reads as follows:-
“Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require”.
The language used in Section 28 is:-
“Within the period allowed by the decree or such further period as the Court may allow”.
and therefore, the Court is empowered to extend the time for payment of the purchase money.
6. In Someswar Dayal and Ors. v. Widow of Lalman Shaw and Ors., a Bench of the Allahabad High Court held that:-
“The power of the Court to fix a period for the deposit of the sale consideration is not provided for specifically, either in the Civil Procedure Code or in the Specific Relief Act. Indeed Section 35 of the Specific Relief Act indicates a contrary intention, for Section 35 indicates that it the event of a party to the decree being in default another party could either file a suit for the recision of the contract on which specific performance had been granted or he could even apply to that Court which could then rescind the decree. It is no doubt true that in this country usually when Courts pass a decree for specific performance, they fix a time during which the plaintiff is enjoined to pay consideration and thereby get a proper sale in respect of a property. But this is more for purposes of convenience rather than in compliance with any provision of law.
The decree which is made in a suit for specific performance is not a final decree of the character that completely debars the Court from extending the period fixed by it, for the decree in such a suit partakes of the nature of a contract and unless it is rescinded or performed it subsists and therefore the right of the Court to make the extension of time for payment also subsists”.
7. It follows from the above that the Code does not fix a time limit for the deposit of the sale consideration and it is only as a matter of convenience rather than in compliance with any provision of law, the Court fixes a time limit and it is more or less in the nature of a contract and unless it is rescinded or performed it subsists. And therefore, the right of the Court to make the extension of time for payment also subsists.
8. It is true that this is a judgment delivered prior to 1963 Act. However, the principle laid down in that decision is applicable even under the Specific Relief Act of 1963. The reason being that no amendment similar to Order 20 Rule 14 is made providing for fixation of time limit within which the sale consideration is to be deposited. Therefore, even under 1963 Act, it is open to the Courts to extend the time limit within which the sale consideration is to be deposited. The party in person who appeared before me brought to my notice a Bench judgment reported in Cherukuri Venkata Rao v. Balagangadhara Sharma and Ors., 1987 (2) ALT 229 wherein the Court refused to extend the time for deposit of balance of sale consideration on the ground that the plaintiff waited for an unreasonable time and his conduct also militates against him, which declines the Court from granting the discretionary or any equitable relief to him. It was a case where the agreement of sale was executed on 17-3-1968 and the suit for the specific performance of that agreement of sale i.e. O.S. 105/1968 was finally disposed of on 23-9-1975 and the plaintiff deposited the balance sale consideration on 16-4-81. The defendants 1 & 2 filed I.A. No. 314/82 under Section 28(1) of the Specific Relief Act for rescinding the agreement on the ground that the plaintiff has failed to deposit the balance of sale consideration for a period of 7 years and that he has also trespassed into the land. Under those circumstances, the learned Judges refused to exercise the discretion to extend the time as there was a delay of 7 years for the deposit of sale consideration from the date of the final decree. The facts of the case are different from the facts of this case as the second appeal was disposed of on 8-4-1994 and the application seeking extension of time was filed on 14-9-1995.
9. The decision in Dr. Ram Kumar v. Mahadeo Lal and Ors., is not relevant to the facts of the present case as in that case, the decree of the trial Court granted time for complying with a condition, imposed by the decree i.e. deposit of Rs. 257/-. An application was filed seeking extension of time which was refused, as it is a suit for mandatory injunction.
10. The Calcutta High Court in Narayan Chandra Nag and Ors. v. Dinatarini Debi and Ors., AIR 1961 Cal. 643 refused to extend the time and held that:
“If the original decree is affirmed in appeal, the time fixed for payment of any sum of money shall be calculated to run from the date fixed in the original decree. If, however, the decree is altered or modified in appeal, the time shall run from the date of the final appellate decree or such other time that the final appellate decree may fix”.
11. No doubt, the learned Judges while holding as above referred to Nagura Appa’s case (1 supra) with great respect, I am unable to agree with the view expressed by the learned Judges. As pointed out in the earlier paragraphs, the case of suit for pre-emption is governed by Order 20 Rule 14, which provides for the consequences to follow if the condition imposed to deposit any amount is not complied with. There is a statutory bar on the Courts to extend the time limit imposed. Whereas, in the case of suit for specific performance, no provision similar to Order 20 Rule 14 is made. Therefore, there is no statutory bar barring the Courts from extending the time limit imposed for the performance of the contract fixed by the Trial Court. Further, Section 28 of the Specific Relief Act 1963 says “such further period as the Court may allow” thereby empowering the Courts to extend the period for deposit of the amount specified. However, there cannot be any doubt that such extension should be within reasonable limits as the discretion is to be exercised judiciously and not capriciously.
12. In view of the above, the petition for extension of time is allowed and the petitioner is permitted to deposit the money on or before 1-4-1996. The petition is accordingly allowed.