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PETITIONER: SMT. PERIYAKKAL & OTHERS

       Vs.

RESPONDENT: SMT. DAKSHYANI

DATE OF JUDGMENT02/03/1983

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) PATHAK, R.S.

CITATION:  1983 AIR  428            1983 SCR  (2) 467  1983 SCC  (2) 127        1983 SCALE  (1)213  CITATOR INFO :  D          1988 SC 981  (6,8)

ACT:      Code of  Civil Procedure - order XXI, Rule 90-Scope of- Parties entcred  into a  compromise with leave of Court that appellants should  pay in Court before the stipulated date a sum of  money in  full and  final setllement  of the decree- Appellants  failed   to  deposit   the  money  in  terms  of compromise-Made an  application for  extension of  time-High Court, if competent to extend time.

HEADNOTE:      The respondent’s  suit for  the recovery  of money from the  first  appellant’s  husband  was  decreed  and  in  the execution of  the decree  certain property  of the appellant was  brought  to  sale.  The  decree-holder  purchased  that property.  The   appellant’s  husband  having  died  in  the meanwhile his  legal representatives  filed  an  application under order XXI, Rule 90 of the C.P.C. for setting aside the sale. That application was dismissed by the executing court. On the  appellant’s appeal,  the sale  was set aside. At the stage of  second appeal  filed by the respondent the parties entered into  a compromise with the leave of the court which after  granting   leave  made  an  order  in  terms  of  the compromise. Under  a term  of the compromise, the appellants agreed to  deposit, and  the respondent  agreed to receive a sum of  Rs. 60,000/-  in full  and final  settlement of  the decree. It  was also stated that if the deposit was not made on or  before the  stipulated date,  the sale  was to  stand confirmed and  the second  appeal of  the respondent  was to stand. Having  found it  difficult to  deposit the  money in terms of the compromise, the appellants filed an application under Ss.  148 and  151 of  the C.P.C. praying that the time for depositing  the money  in terms  of  the  compromise  be extended. The  High Court  dismissed this application on the ground that  the Court  could not extend time where time had been stipulated  by the parties in the compromise arrived at between them.      In appeal  to this  Court it was contended on behalf of the appellants  that where  a compromise  had been  made the order of  the Court,  it was open to the Court to extend the time under s. 148 C.P.C.

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    Allowing the  appeal and remanding the case to the High Court to  dispose of  the execution  second appeal afresh in accordance with the law. ^      HELD: As  there was  no statutory compulsion to dismiss the application  under order  XXI, Rule  90, C.P.C,  in  the absence of an agreement between the parties, the Court would have decided the appeal arising out of tho application 468 on the  merits. The  parties in  the  instant  case  however entered into  a compromise  and invited the court to make an order in  terms of  the compromise, which the Court did. The time for  deposit stipulated  by the parties became the time allowed  by   the  Court   and  this   gave  the  Court  the jurisdiction to extend time in appropriate cases. Time would not be  extended ordinarily,  nor for  the mere  asking  but would  be   granted  in   rare  cases  to  prevent  manifest injustice. Where  the contract  of the parties has merged in the order of the Court the Court’s freedom to act to further the ends  of justice  would not  stand curtailed.  The  High Court was  in error  in thinking  that they  had no power to extend time.                                                    [472 B-F]      Hukumchand v.  Bansilal and  ors., A.I.R.  1968 SC  86, held inapplicable.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3527 of 1979.      Appeal by  Special leave  from the  Judgment and  order dated the  15th JaNuary, 1979 of the Karnataka High Court in Executive Second Appeal No. 89 of 1974.      Dr. Y.S.  Chifale, R.  B. Datar  and  Miss  Madhu  Mool Chandani for the Appellants.      S. C.  Javali, Ranjit  KtJmar and  B. P.  Singh for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. The  respondent Dakshyani  sued to recover a  sum of  RS. 7,324.86  paise from  Narayana Swami, husband of the first appellant and father of the rest of the appellants.  The   suit  was  decreed  with  costs  and,  in execution  of  the  decree,  certain  property  situated  in Bangalore  City  was  brought  to  sale.  The  decree-holder purchased the  property at the execution sale held on August 19, 1969,  for a  sum of  Rs. 28,000.  Narayana Swami having died  in  the  meanwhile,  his  legal  representatives,  the present  appellants,   filed  an   application   under   the provisions of order 21 Rule 90 for setting aside the sale on various  grounds.   The  Executing   Court   dismissed   the application on  March 28, 1973 but on an appeal preferred by the appellants  the sale was set aside on July 31, 1974. The respondent filed  a second  appeal  to  the  High  Court  of Karnataka. At  the hearing  of the second appeal the parties entered into  a compromise with the leave of the Court, such leave being  necessary since mally of the present appellants were minors then 469 and are minors even now. The Court granted leave and made an order in terms of the compromise. The term of the compromise which we are concerned is that the present appellants agreed to deposit  and the  present respondent  agreed to receive a sum of  Rs. 60,000/-in  full and  final  settlement  of  the decree. If  the deposit  was made  on or before November 30,

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1976, the sale which though confirmed by the Trial Court but set aside  by the Appellate Court was to stand set aside and the second  appeal of the respondent was to stand dismissed. If the amount of Rs. 60,000/- was not deposited on or before November 30, 1976 the second appeal was to stand allowed and the sale  was to  stand confirmed. Time was stated to be the essence of the contract between the parties. The applellants were permitted under the compromise, to raise funds by sale, mortgage etc.  Of the  property in  question. The appellants failed to  deposit the amount in terms of the compromise. It appeaIs that  they were  unable to raise the necessary funds as they  could not evict the tenant who was in occupation of the property.  Finally the  appellants filed  an application purporting to  be  under  ss.  148  and  151  of  the  Civil Procedure Code  to extend the time for depositing the sum of Rs. 60,000  in terms  of the compromise dated June 24, 1976. The High  Court dismissed the application on the ground that the  Court  could  not  extend  time  where  time  had  been stipulated by  the  parties  themselves  in  the  compromise arrived at  between them.  The High  Court purported to rely upon the  decision of  this Court  in Hukumchand v. Bansilal and Ors.(l)      Shri R.  B. Datar  Learned Counsel  for the  appellants urged that there was no limitation on the power of the Court to extend  time under  s. 148,  c. P.  c. and  that where  a compromise had  been made  an order  of the  Court,  it  was certainly open  to the  Court to extend time under s. 148 c. P. c.  He relied  upon the  decision of  the High  Courts of Bombay and  Calcutta in Marketing and Advertising Associates Pvt. Ltd.  v. Telerad Pvt. Ltd.(2) Jadabendra Nath Mishra v. Manorama Debya(3).  He distinguished  the decision  of  this Court in  Hukum  Chand  v.  Bansilal.  Shri  Javali  Learned Counsel for  the respondent,  on the  other hand  urged that time should not be extended by the Court, 470 in law  and on  principle, where  the parties themselves had agreed upon  the time  within which  the amount  was  to  be deposited.      In Hukamchand  v. Bansilal  the real question which was considered  was,   if  a  mortgaged  property  was  sold  in execution of a mortgage decree and if the application to set aside the sale under order 21 Rule 90 was dismissed but time was  granted  by  consent  of  parties  for  depositing  the decretal amount  etc. could  time be extended for depositing the decretal  amount etc.  to avert the confirmation of sale under order  34 Rule  S, except  with  the  consent  of  the parties. The  answer  was  ’no’.  .The  Court  said  on  the dismissal of  an application under order 21 Rule 90, confir- mation of  sale under  order 21  Rule 92  had to follow as a matter of  course. Order  34 Rule  S  merely  permitted  the deposit to  be made  at any  time before confirmation of the sale and  there could  be no  question of extending the time for such  deposit.  If  parties  agreed  to  have  the  con- firmation of  sale postponed,  further postponement would be possible by  agreement of parties only. The Court would have no say  in the  matter. Sec.  148 C.  P. C.  would  have  no application. The position was clarified by the Court thus :           "The judgment-debtor  mortgagor had  the right  to      de- posit the amount at any time before confirmation of      sale within 30 days after the sale or even more than 30      days after  the sale under order XXXIV, Rule (S) (l) so      long as  the sale  was not confirmed. If the amount had      been deposited  before the  confirmation of  sale,  the      judgment- debtors  had the right to ask for an order in      terms of  order XXXlV,  Rule 5  (1) in their favour. In

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    this case  an application  under order  XXI Rule 90 had      been  made  and,  therefore,  the  sale  could  not  be      confirmed immediately  after 30 days which would be the      normal  course;  the  confirmation  had  to  await  the      disposal of  the application  under order XXl, Rule 90.      That application was disposed of on October 7, 1958 and      was dismissed.  It is  obvious from  the order sheet of      October 7,  1958 that an oral compromise was arrived at      between the  parties in  court on  that  day.  By  that      compromise time  was  granted  to  the  respondents  to      deposit the  entire amount due to the decree-holder and      the auction-purchaser by November 471      21, 1958.  Obviously, the basis of the compromise was A      that  respondents  withdrew  their  application,  under      order XXI,  Rule 90 while the decree-holder society and      the auction-purchaser  appellant agreed that time might      be given  to deposit the amount upto November, 21,1958.      If this  agreement had  not been  arrived at and if the      application under  order XXI,  Rule 90 had been dismis-      sed (for  example, on  merits) on  October 7, 1958, the      court was bound under order XXI, Rule 92 (1) to confirm      the sale at once. But because of the compromise between      the parties  by which  the respondents  were given time      upto November  21, 1958 the court rightly postponed the      question of  confirmation of  sale till  that  date  by      consent of  parties. But  the  fact  remains  that  the      application under order XXI, Rule 90 had been dismissed      on October  7, 1958 and thereafter, the court was bound      to confirm  the sale but for the compromise between the      parties giving time upto November 21, 1958".      The Court  then referred to the refusal of the Court to extend time  by a fortnight on November 22, 1958 and further observed :-           "The executing  court refused  that  holding  that time upto  Nov. 21,  1958 had been granted by consent and it was no  longer open to it to extend that time. The executing court has  not referred  to order XXI, Rule 92 in its order, but it  is obvious  that the  executing court  held that  it could not  grant time in the absence of an agreement between the parties  because order XX[, Rule 92 required that as the application under  order XXI, Rule 90 had been dismissed the sale must  be confirmed.  We are  of the  view that  in  the circumstances it  was not  open to  the executing  court  to extend time  without consent  of parties,  for time  between October 7,  1958 to November 21, 1958 was granted by consent of parties. Section 148 of the Code of Civil Procedure would not apply  in these  circumstances, and  the executing court was  right  in  holding  that  it  could  not  extend  time. Thereafter, it  rightly confirmed the sale as required under order XXI, Rule 92 there being no question of the appli- 472      cation of  order XXXIV,  Rule S  for the  money had not      been deposited  on November 22, 1958 before the order J      of confirmation was passed. Tn this view of the matter,      we are of opinion that the order of the executing court      refusing grant  of time  and confirming  the  sale  was      correct".      In  the  case  before  us,  the  situation  Is  totally different. Unlike  the case of Hukam Chand v. Bansilal where there was  a statuory  compulsion to confirm the sale on the dismissal OF  the application  under order  XXI Rule 90 and, therefore, postponement  and  further  postponement  of  the confirmation of the sale could only be by the consent of the parties in  the case  before  us,  there  was  no  statutory

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compulsion to  dismiss the application under order XXI, Rule 90 in  the absence  of an agreement between the parties. The court would  have then decided the appeal arising out of the application on  the merits.  The parties,  however,  entered into a  compromise and invited the court to make an order in terms of  the compromise,  which the court did. The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in  appropriate cases.  Of course,  time would  not  be extended ordinarily,  nor for  the mere  asking. It would be granted in  rare cases  to prevent  manifest injustice. True the court  would not  rewrite a contract between the parties but the  court would  relieve against  a forfeiture  clause; And, where  the contract  of the  parties has  merged in the order of  the court,  the court’s  freedom to act to further the ends  of  justice  would  surely  not  stand  curtailed. Nothing said  in Hukamchand’s  case militates  against  this view. We are, therefore, of the view that the High Court was in error in; thinking that they had no power to extend time. Even  so,  Shri  Jawali  submitted  that  this  was  not  an appopriate case  for granting  any  extension  of  time.  We desire to  express no  opinion on  that question.  The  High Court will  decide that  question. We accordingly, set aside that judgment  dated 15th  January, 1979,  of the High Court and direct  the High  Court to  dispose of I. A. No. VIII in Execution Second  Appeal No.  89/74 in  accordance with law. The parties will bear their own costs. P.B.R.                                       Appeal allowed. 473