NIZAMUDDIN and 13 others vs Ch. MUHAMMAD SAEED and 7 others

' The only question on this first appeal by the defendants in a suit for the specific performance of contract of sale is a short question of law. It is whether the Court which passed the decree is competent to alter it by allowing an extension of time specified in the decree itself for the payment of the purchase money which the Court had ordered him to pay.

2. It may be stated as a general rule that, unless otherwise provided, a Court is not competent to alter a decree and that neither section 148 nor the residuary section 151 of the Code of Civil Precedure will avail a person who seeks the alteration. Section 148 gives the Court power to extend time fixed or granted by it for the doing of any act prescribed or allowed by the Code and this the Court can do even after the period originally fixed or granted has expired. But this section, it is now well-settled, does not apply where the period is fixed by a decree unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. Per Hamood-ur-Rehman, J.

In Shah Wali v. Ghulam Din PLD 1966 SC 983 at 1000). The principle on which this rule rests, to quote again from the judgment of Hamood-ur-Rehman, J. In Shah Wali's case, is: "that since a decree normally puts an end to a suit the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes functus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in the case of such a decree the Court does not become functus officio but still retains control over the action and, therefore, has full power to make necessary orders therein including an order for the extension of time."

3. It is also firmly established that section 152 of the Code of Civil Procedure "permits the correction of clerical or arithmetical mistakes in judgments and decrees etc. Of errors arising from accidental slip or omission, but does not authorize the Court to supplement its judgments, decrees or orders by directions which require application of mind and have the effect of taking away rights which may have otherwise accrued to one party or the other". (See Haji Ishtiaq Ahmad v. Bakhshaya 1976 SCMR 420).

4. There is, however, respectable authority which has treated the decrees in suits for specific performance as a category apart. The reason for so treating these decrees is section 35 of the Specific Relief Act, 1877, which reads: "When rescission may be adjudged.-Any person interested in a contract in writing may sue to have it rescinded, and such rescission may be adjudged by the Court in any of the following cases, namely:-

(a) where the contract is voidable or terminable by the plaintiff;

(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;

(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.

' 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."

5. The leading authority on the subject is Abdul Shaker v. Abdul Rahiman AIR 1923 Mad. 284, which was among others followed in Gollul Prasad v. Fattelal AIR 1946 Nag. 29 and Ashraf Ali v. Bayla Hasda PLD 1967 Dacca 557. To quote from the judgment of Wallace, J. In the Madras case: "No special form for drafting a decree for specific performance is supplied by the Civil Procedure Code, as is supplied by it in the case of a decree in a pre-emption suit by Order XX, Rule 14, which directs that, if the purchase money is not paid as stipulated in the decree, the suit shall be dismissed with costs. Hence the analogy of decree, etc. In pre-emption suits and reported rulings thereon is not of assistance in this case. The form of decree drawn up in the trying Court is the general form adopted in this Presidency for such decrees. 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 I 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. By the decree for specific performance the Court sets out what it finds the real contract between the parties was, and declares that such contract exists and gives what it considers a reasonable time within which the contract shall be carried out. Regarding the decree from this point of view, as contract, it is clear in this case, as in most others of the same kind, that time is not of the essence of the contract, and that, until the contract is rescinded by formal order or decree, such time for performance, not being an essential part of the contract, may be varied by the Court which has declared what the essential terms of the contract are."

6. The word 'sue' in section 35 appears, at first sight, to present some difficulty in its application to a case, such as this, in which decree for specific performance has already been passed, but that difficulty at once disappears if we read the word 'sue' in its setting, i.e. In the context of the section as a whole, particularly clause (c) and the following words in the last paragraph namely "in the same case, the Court may by order in the suit in which decree has been made and not complied with, rescind the contract either as regards the party in default or altogether as the justice of the case may require".

7. Thus, read the word 'sue' seems to have been used not in the sense of suit as that expression is technically understood, but in its ordinary dictionary meaning namely to institute legal proceedings; to make application to a law Court, so that the action, when under clauses (a) and

(b) may be in the form of a formal suit, and when under clause (c) may be in the form of an application or petition.

8. The significance of section 35 lies in this that the power that it gives is the power to rescind or not to rescind the contract even though a decree has been passed; and it appears to follow as a natural corollary that if the Court, in its discretion, does not order the rescission of the contract, despite there being a default in the payment of money in accordance with the decree, it may, to allow the decree to remain operative, enlarge the time.

9. It seems to me, therefore, that by necessary implication, section 35, clause (c), empowers the Court to enlarge the time specified in the decree.

10. At any rate, there should be no doubt that one clear effect of section 35 is that the Court has not, with the passing of the decree, become functus officio and that is what takes it out of the general rule, stated above.

11. The above conclusion renders it unnecessary to go into the question whether the decree in a suit for specific performance of contract is, as was held in the above-cited cases, a decree of a preliminary nature. If I may say so with great respect, there in nothing in the Code of Civil Procedure or in the Specific Relief Act to compel that conclusion or to compel the introduction of a fiction. I will content myself with saying that section 35 of the Specific Relief D Act empowers the Court to alter the decree and that should, in my opinion, be sufficient.

12. The only precedent case of this Court cited by the learned counsel for the respondent is Muhammad Riaz Qamar v. Umar Din 1985 CLC 474. That was a writ petition which failed because the petitioner had an alternate remedy and had invoked the constitutional remedy without availing of that remedy. At the same time, the effect of section 35 of the Specific Relief Act was considered and following the view in Abdul Shakir's case, it was observed that the Court could extend the time specified in the decree.

13. It remains to consider the cases cited by the learned counsel for the appellants. In Himmun v.

Fauja AIR 1921 Lah. 6 (F.B.) which was a pre-emption suit the plaintiff was to deposit the pre- emption money within a month of 29th August, 1919. The Court was closed in September and the early part of October and reopened on 7th October when the pre-emption money was tendered. It was held that in such a case it should be held that payment on the day on which the Court reopened was all that could possibly be expected of the plaintiff. There was, therefore, no question of altering the decree. In the order of reference, however, it was said that a decree can be altered by review, on appeal or on revision, but section 148 or 151 of the Code of Civil Procedure could not be utilized for the purpose. In Bashir Begum v. Abdul Rehman PLD 1963 (W.P.) Lah. 408, the question was whether the judgment could be reviewed in the light of a subsequent compromise between the parties under section 151, C.P.C. The answer was in the negative. In Shah Feroze v. Said Alam PLD 1954 Pesh. 54, the dispute related to a passage which, according to the plaint passed through certain Khasra numbers. The suit was decreed; later, the plaintiff wanted under section 151, C.P.C.

The correction of the decree by substitution of other Khasra numbers, and it was held that section 152, C.P.C. Could not be utilized for the purpose. In Ishtiaq Ahmad v. Bakhshaya 1976 SCMR 420, the appellate Court dismissed the pre-emptor's appeal seeking reduction in the sale-price fixed by the trial Court, without making a direction regarding the time for depositing the pre-emption money. It was held that the pre-emptor must, in such a case, deposit the money within a reasonable time of the dismissal of the appeal and the Court had no power under section 152, C.P.C. To amend the decree so as to fix a time limit for depositing the pre-emption money.

14. Turning to the facts of this case, a decree for the specific performance of the agreement of sale in question was passed in favour of Ch.Muhammad Saeed and Iftekhar Ahmad Siddiqi, plaintiffs, on 20-12-1980, with a direction that the plaintiffs should deposit the purchase money by 15-1-1981. On 23-12-1980, an application under Order IX, rule 13 of the Code of Civil Procedure was made by one of the defendants named Mst. Zubaida Begum, saying that her husband Irshad All had accepted service on her behalf but had failed to defend the suit, because he had colluded with the plaintiffs.

At the same time, Mst. Zubaida Begum also prayed that the operation of the decree dated 20-12- 1981 be suspended. Accordingly, the learned Civil Judge, by his order dated 11-1-1980, suspended the operation of the decree dated 20-12-1980. By the order dated 8-3-1981, however, the learned Civil Judge dismissed Mst. Zubaida Begum's application under Order IX, rule 13 of the Code of Civil Procedure. While doing so, he also vacated his order dated 11-1-1981, by which the direction in the decree that the plaintiffs should deposit the purchase money by 15-1-1981 was suspended, and ordered "that the decree and judgment is accordingly amended with the result of this application that the plaintiffs shall instead of depositing the amount by 15-1-1981 shall deposit the same upto 10-5-1981". This order was, if I may say so, eminently justified both on the view that the Civil Judge had not become functus officio and on the maxim actus curiae neminem gravabit (an act of the Court shall prejudice no man) which is a maxim founded upon justice and good sense. As has been seen above, it was on the application of one of the defendants that the operation of the direction that plaintiffs should deposit the purchase money by 15-1-1981 was suspended. The order so suspending that direction was made on 11-1-1981, i.e. When there was still time for depositing the purchase money. Thus, the plaintiffs were prevented from depositing the purchase money by 15-1- 1981 by the order of the Court dated 11-1-1981 and to hold that the learned Civil Judge was not competent to enlarge the time would amount to punishing the plaintiffs for an act of the Court.

15. For the above reasons, I find no merit in the revision petition and dismiss it. The parties are, however, left to bear their own costs.