P L D 1967 Dacca 557 (PLP)

When the purchaser or lessee is in possession of the subject‑matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any, received by him as such possessor. In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require." As to the import of this provision, I think I can do no batter than quote the relevant observations of Wallace, J. In his separate judgment in Abdul Shaker Sahib v. Abdul Rahiman Sahib (I L R 46 Mad. 148). These appearing on pages 159‑161 of the report are as follows:‑ "The form of decree drawn up in the trying Court is the general form adopted in this Presidency for such decree. But that it is in the nature of a preliminary and not a final decree, is, I think, placed beyond doubt by section 35 of the Specific Relief Act. As 1 read that section, it lays down that when a decree for specific performance of a contract of sale has been passed and the purchaser makes default in payment of the sum which the Court has ordered him to pay, the vendor may either file a fresh suit for rescission of the contract or may, in the specific performance suit itself, apply to the Court to rescind the contract. It is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree. It is not determined until the Court orders that it is determined. . . . . . . . . . . . . . . . . . . I take it then that where specific performance of sale has not been effected within the period laid down by the decree, it is open, (a) to the purchaser to apply to the Court for an extension of time for payment of the purchase money and (b) to the vendor to apply either for a final and peremptory order for specific performance or for an order rescinding the contract either immediately or to follow autocratically on the expiry of the period peremptorily granted. The original action is thus open until a final decree or order of such a nature and scope is passed, and the original Court has until then ample power to extend the time for specific performance." In the same case Schwabe, C. J., having referred to the various a remedies open to the vendor in default of payment of the purchase money by the purchaser has observed:‑ "It would seen to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts an end to the action and that the control of the Original Court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may, as in the present case, be of a greater value than the contract purchase money, which perhaps by some accident the purchaser has failed to produce on the date fixed . . . . . . . . . . . . In my judgment, it was not intended by this decree that the payment of the Rs. 4,000 by the date named should be a condition, failing to comply with which would deprive the successful plaintiff of all his rights under the decree. In my judgment, this decree is 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 therein, including in appropriate cases the extension of the time. If I am wrong in this and the proper interpretation of this decree is as contended for by the appellant, then, in my judgment, this decree is wrong and I should, if necessary, order that it be set right by eliminating the condition which ought not to have been imposed upon the successful plain tiffs, except at a much later date and upon definite refusal by him to complete. Even in that case such condition could only be imposed at the request of the defendant who, as I pointed out, has other various remedies. As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use. Some words such as "further consideration reserved" should be added; but, personally, I should be prepared to say that the appropriate forms are those set out in Setor (sic)." It is thus clear that the decree in an action for specific performance of contract, no matter whatever may be the form in which it may be drawn up, is, in the eye of law, a preliminary decree, and as such, even where a default clause is attached thereto, is not dead but pending, though in a comatose condition. Necessarily the Court retains control over the action and has therefore, jurisdiction to enlarge time regardless of the said default clause. Reference may also be profitably made here to some other authorities cited by Mr. Kamal Hossain. One of them is the case of Jyotish Chandra Sen v. Rukmini Ballav Sen and others (62 C W N 588). In this case upon an additional written statement filed by a pro‑defendant the Court ordered Payment by him of a certain sum as cost to the plaintiff by a fixed date subject to the condition that "in default of payment of costs the additional written statement will stand rejected." Costs were not paid by the date fixed and an application was made praying for extension of time. Ultimately the learned Court in spite of the objection of the plaintiff passed an order extending the time for payment of the costs and on deposit of the requisite amount within the extended date the additional written statement was accepted. In these circumstances, it was held:‑ "Order VIII, rule 9 of the Code of Civil Procedure provides that an additional written statement may be accepted by the leave of the Court on such terms as the Court may think fit. Where one of the terms is that certain amount would be paid within a fixed time that is an act allowed by the Code and when a period is fixed by the Court for doing that act, section 148 of the Code, in terms applies. It is then open to the Court to enlarge this period even though the period originally fixed or granted might have expired. The fact that there was a default clause that if the payment be not made within a specified time, the applica tion will stand dismissed, does not take away from the Court's power to enlarge the time under section 148 of the Code of Civil Procedure." It, however, appears rather difficult to reconcile the view taken in this case with the proposition laid down in the above mentioned decision of this Court in Shaikh Ayezuddin v. Priya Shankar Chowdhury arid in that view of the matter, I cannot, I am afraid, follow this. The next case relied upon in this behalf is Goku Prasad v. Fattelal (A I R 1946 Nag. 29). In this case the order passed by the learned lower Court concerned was exactly similar to the one with which I am concerned in this case. It ran thus: "It is ordered and decreed that on plaintiff's depositing Rs. 6,664 in Court for payment to defendant on or before 21st September 1942, the defendant shall execute a sale‑deed in respect of his 0‑8‑0 share of mouza Palode with all rights appertaining thereto including the Khudkasht lands (consisting of Patti No. 1) together with occupancy and absolute occupancy (fields) and that the sum of Rs. 1,022 only be paid by the defendant to the plaintiff on account of costs of this suit . . . . if the defendant fails to execute the sale‑deed the plaintiff will get the same executed through Court according to law. If the plaintiff fails to deposit the amount in Court in time, his suit shall stand dismissed with costs." In these circumstances it was held: "The decree in a suit for specific performance of a contract for sale fixing time for payment of purchase‑money is in the nature of a preliminary decree and therefore the Court has power to extend the time fixed by the decree." In reaching the above conclusion it was observed inter alia:‑ "Ordinarily the Court should avoid passing a decree in the form of a final decree but leave it to the vendor to move the Court for an order rescinding the contract . The lower Court apparently saw its mistake at later stage and corrected it by extending time." I may also refer back to the case of Abdul Shaker Sahib v. Abdul Rahiman Sahib and another already noticed above, in which, too, the relevant proposition has been laid down in these terms: "that the appellate Court had power to extend the time limited by the original decree, and that the original Court had still jurisdiction in the matter and had full powers to deal with any point that might arise, including, if necessary, an application for further time." . In view of the law, as embodied under section 148 of the Code and section 35 of the Specific Relief Act, as well as the authorities discussed above, I am inclined to accept the con tention of Mr. K. Hossain that in the case of a decree for specific performance of contract the Court retains the jurisdiction to extend time under section 148 of the Code of Civil Pro cedure, even though the decree contains a default clause b providing that in default of the plaintiff to make the requisite payment within the period fixed by the Court the suit shall stand dismissed. In other words, the present case does not, in my view, come within the mischief of the decision in the case of Shaikh Ayezuddin v. Priya Sankar Chowdhury. As has also been incidentally made clear above, the afore said power of extending the time can be exercised by the appellate Court as well as much as the original Court. In my opinion, therefore, the appeal must succeed. The appeal is accordingly allowed and the judgment and decree of the learned lower appellate Court as well as the order dated 16‑5‑60 passed by the learned Court of first instance are set aside. The plaintiffs appellants are allowed two months' time from date to deposit the amount in question. Upon deposit so made the defendant No. 1 shall execute and register the kabala within one month from the date of deposit failing which the Court shall execute the document which shall be binding on the defendant. Having regard to the facts and circumstances of the case I leave the parties to bear their own costs in this Court. Leave under clause 15 of the Letters Patent, prayed for is refused. K. B. A. Appeal allowed.