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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3213 OF 2015 (Arising out of SLP(C) No.5840 of 2012)

P.R. Yelumalai                   … Appellant :Versus:

N.M. Ravi                           … Respondent       WITH

CIVIL APPEAL NO. 3214 OF 2015 (Arising out of SLP(C) No.10852 of 2013)

N.M. Ravi                   … Appellant :Versus:

P.R. Yelumalai                … Respondent

J U D G M E N T Pinaki Chandra Ghose, J.

1. Leave is granted in both the matters.

2. These cross appeals have been filed against the judgment  

and  order  dated  22.08.2011  passed  by  the  High  Court  of  

Karnataka at Bangalore in Writ Petition (Civil) No.6449 of 2010,  

whereby and whereunder the High Court of Karnataka has set  

aside the order dated 15.02.2007 passed by the Trial Court in  

O.S. No.439 of 2006 and remitted the matter to the Trial Court  

for disposal afresh in accordance with law.  

3. The factual background of the case is that on 04.08.2006,

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one P.R.  Yelumalai,  who is  the appellant  in  the first  appeal,  

entered  into  an  Agreement  of  Sale  with  N.M.  Ravi,  the  

respondent in the first appeal,  is the absolute owner of the  

property.  The  total  consideration  for  the  sale  was  

Rs.41,60,000/-, out of which a sum of Rs.8 Lakhs was paid as  

advance  money  towards  the  total  consideration  amount.  

Thereafter,  the  Seller  vide  legal  notice  dated  04.09.2006  

sought to cancel the agreement of sale which was refused by  

the Buyer. This led to filing of a suit for specific performance of  

the contract by the Buyer P.R. Yelumalai (hereinafter referred  

to as “the Plaintiff-Buyer”), before the II Additional Civil Judge  

(Sr. Division), Kolar, being O.S. No.439/2006. The Seller N.M.  

Ravi  (hereinafter  referred  to  as  “the  Defendant-Seller”)  

conceded to the Plaintiff-Buyer’s prayer for performance of the  

said agreement stating that he had no objection to the Court  

decreeing the suit in favour of the Plaintiff-Buyer. Accordingly,  

the suit was decreed on 15.02.2007 and the Plaintiff-Buyer was  

directed  to  deposit  the  balance  sale  consideration  of  

Rs.33,60,000/-  by way of demand draft,  in Court within one  

month from the date of decree and the Defendant-Seller was  

directed to execute regular sale deed in favour of the  Plaintiff-

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Buyer,  within three months from the date of  decree.  It  was  

made clear by the Trial Court in the decree that if the balance  

amount  of  sale  consideration  is  not  deposited  within  one  

month from the date of decree, the suit shall be deemed to  

have been dismissed.

4. The Plaintiff-Buyer did not deposit the said amount within  

one  month  as  stipulated  in  the  decree  but  he  filed  an  

application for extension of time for depositing the amount of  

balance sale consideration and vide  order dated 17.03.2007,  

the Additional Civil Judge (Sr. Division) extended the time by  

two  months.   After  the  extension  order,  the  last  date  for  

deposit of the amount fell during the Summer Vacation of the  

Court. The Plaintiff-Buyer did not deposit the said amount even  

on the re-opening day after Summer Vacation, i.e. 28.05.2007.  

But allegedly, he filed a Memo for issue of Receipt Order (R.O.)  

for depositing the said amount. However as per the records,  

the  R.O.  was  issued  on  29.05.2007  and  the  amount  was  

deposited on the same day by cash.

5. Admittedly,  the Defendant-Seller  was not served with a  

copy of  the  Memo and was  not  notified with  regard  to  the

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alleged  deposit.  The  Defendant-Seller  sold  the  property  in  

question to Sri Rajesh on 20.06.2007, under a registered sale  

deed. The Plaintiff-Buyer filed Execution Petition No.88/2008 on  

17.03.2008  in  the  Court  of  IInd  Additional  Civil  Judge  (Sr.  

Division),  which  was  dismissed  on  20.10.2008.  The  IInd  

Additional Civil Judge observed as follows:  

“7. It is also the contention of the J.Dr. there is no  evidence  that  D.Hr.  has  deposited  the  balance  consideration  on  29.5.2007.  Therefore  records  in  O.S.439/2006 were secured by the court and perusal  of the same, it is revealed that in the order sheet  after 170/07 there is an endorsement of the office  that  consideration  amount  of  Rs.33,60,000.00  is  deposited  under  J.D.No.177/07  (R.O.  No.295806)  dated  29.5.2007  and  the  same  endorsement  is  found  in  the  certified  copy  of  the  order  sheet  produced  by  the  D.Hr.  in  this  case.  However,  the  counsel  for  the  J.Dr.  argued  that  he  has  also  obtained copy of the order sheet and in his order  sheet in O.S. 439/06 said endorsement is not there  and  therefore,  he  impliedly  contended  that  endorsement has been subsequently got written in  the  order  sheet.  However,  when  there  is  no  allegation  made  against  the  court  officials  merely  because the endorsement was written in the order  sheet after the certified copy of the order sheet in  O.S.439/06 was issued to the J.Dr. it does not mean  that endorsement is correct. Further it is seen that  J.Dr.  has  produced  the  copy  of  the  order  sheet  obtained by him in this case and perusal of the same  reveals  that  he  has  applied  for  the  copy  on  29.5.2007  and  obtained  it  on  the  same  day.  Therefore, there is all the chance that after issuance  of  the  certified  copy  of  the  J.Dr.  the  deposit  of  amount  may  be  noted  in  the  order  sheet  on  the  same date, but after issue of certified copy of the

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J.Dr. It is also the contention of the J.Dr. that even if it is  presumed that vacation period has to be excluded  by  calculating  the  extended  period  of  2  months,  then  D.Hr.  was  required  to  deposit  the  balance  consideration  on  28.5.2007  as  that  was  the  re- opening  day  for  the  civil  courts.  A  perusal  of  the  calendar  of  2007 does reveal  that  re-opening day  was 28.5.2007 and not on 29.5.2007 as contended  by D.Hr.  

xxx xxx xxx xxx 9. Thus the D.Hr. is entitled for seeking exclusion  of  vacation  period  while  calculating  the  extended  period  of  2  months  of  deposit  of  balance  consideration. Admittedly the judgment was passed  on  15.2.2007.  However,  a  perusal  of  order  dated  15.2.2007  makes  it  clear  that  period  of  1  month  given  to  plaintiff/D.Hr.to  deposit  the  balance  consideration starting from the date of decree and  not from the date of order dated 15.2.2007, because  order clear states that D.D. of Rs.33,60,000.00 will  have  to  be  deposited  within  one  month  from the  date  of  decree.  Further  order  sheet  in  O.S.439/06  makes it clear that decree is signed on 27.2.2007.  Therefore, initially the period of one month started  from 27.2.2007 and ended on 26.3.2007 and since  period  was  extended  for  2  months  on  17.2.2007  normally  last  date  for  deposit  of  balance  consideration fell  on 26.5.2007 and the civil  court  was not  working on 26.5.2007 and next  date i.e.,  27.5.2007 was Sunday.  10. Hence,  the  D.Hr.  was  required  to  deposit  the  balance consideration on 28.5.2007, which was the  re-opening  day.  However,  to  show  that  he  made  efforts  to  deposit  the  balance  consideration  on  28.5.2007 and made an application for issue of R.O.  on  28.5.2007  itself  there    is  no  material  placed  before  the  court  by  the  D.Hr.  Hence,  as  the  endorsement  on  the  order  sheet  in  O.S.  439/06  reveals that R.O. is dated 29.5.2007 and deposit is  made on 29.5.2007 it is clear that even though the  D.Hr.  was required to make the deposit on the re-

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opening day i.e., 28.5.2007, he has failed to do so  and has deposited it only on the next day….”

6. The aforesaid order of dismissal passed by the Trial Court  

on  20.10.2008  in  Execution  Petition  No.88/2008,  was  

challenged  by  the  Plaintiff-Buyer  before  the  Karnataka  High  

Court by filing Writ Petition No.13541/2008. The High Court of  

Karnataka did not  find any error  in  the order  passed by the  

Executing Court and dismissed the writ  petition on 7.1.2010.  

However,  it  permitted  the  Plaintiff-Buyer  to  move  the  Court  

which had passed the decree, for seeking extension of time  in  

depositing the amount of balance sale consideration.  

7. On  10.02.2010,  the  Plaintiff-Buyer  filed  an  application  

under Section 148 of the Code of Civil  Procedure (“CPC”, for  

short) for extension of time till 29.5.2007.  The Additional Civil  

Judge (Sr. Division) vide order dated 15.02.2010, rejected the  

application for extension of time on the following reasoning:

“Whereas the order of this Court itself is very clear,  that the plaintiff as to deposit the balance amount  within two months from the date of its order. Under  the said circumstances the plaintiff need not wait till  last date, knowing the said day is vacation. Further  the  plaintiff  has  taken  chance  to  deposit  on  re- opening  day,  where  he  could  not  deposit,  but  deposited on the next day without seeking further  extension  of  time  according  to  his  whims  and

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fancies.  Further,  the  plaintiff  has  not  placed  any  materials to show that he had approached the court  on 28.8.07. But the orders sheet at page 8, it reveals  that  consideration  amount  of  Rs.33,60,000/-  is  deposited  under  J.D.  No.170/07  (R.O.  No.0295806  dated 29.5.07). Hence from the said order sheet, it is  clear that the plaintiff has approached the court on  29.5.07  i.e.  the  very  next  day  of  re-opening  day,  where there is a delay of one day in depositing of  consideration amount.  Further,  the  order  of  Hon’ble  High  Court  in  W.P.  No.13541/08 is dated 7.1.2010. Whereas the Hon’ble  High Court of Karnataka held that the trial court shall  pass appropriate orders within one week thereof. But  on perusal of said orders it reveals that the plaintiff  had applied for copy of said order on 4.2.2010 and  obtained copy on 5.2.10 and appeared before this  court with the said orders on 10.2.2010 and filed the  present application for extension of time to deposit  the  balance  sale  consideration  amount.  But  the  plaintiff  instead  of  filing  the  present  application  within one week from the date of order of Hon’ble  High Court, he has filed the present application on  10.2.2010 where there is a delay of more than three  weeks in filing the present application. Though the  plaintiff  is  aware of  the order of the Hon’ble High  Court  on  7.1.2010,  but  he  has  not  applied  for  certified copy of the said orders on same day. But he  has applied for the copy of the said order after lapse  of one month which is also delayed by one month.  Therefore,  under  said  circumstances,  the  plaintiff  has  not  made  out  any  grounds  to  allow  the  said  application  for  extension  of  time  to  deposit  the  balance  sale  consideration  amount  of  Rs.33,60,000/-. Thus under the said circumstances the application  filed  by  the  plaintiff  U/Sec.151  of  CPC  is  hereby  rejected with costs.”

 8. Aggrieved by the said order, the Plaintiff-Buyer again filed  

a  writ  petition  before  the  Karnataka  High  Court,  being  Writ

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Petition No.6449/2010.  The High Court remanded the matter  

to Trial Court by formulating four questions to be answered by  

it,  which  were:  (i)  whether  the  amount  deposited  on  

29.05.2007  amounts  to  a  deemed extension  of  time  and  a  

valid deposit;  (ii )whether one Rajesh who has purchased the  

property is a notified purchaser;  (iii) whether the appellant is  

entitled  to  extension  of  time  when  third  party  interest  is  

created;  and  (iv)  whether  the  suit  stood  dismissed  on  

28.05.2007 or earlier when the amount was not deposited in  

terms of the decree. The High Court directed the Trial Court to  

dispose  of  the  matter  within  two  months  from the  date  of  

receipt of the order.  Aggrieved by the order of remand passed  

by the Karnataka High Court, the parties are before us.   

9. The learned counsel for the Plaintiff-Buyer contended that  

this is not a proper case to be remanded back to the Trial Court  

for  fresh consideration and the  High Court  should  not  have  

remanded the case.  He further contended that Execution Case  

No.88/08 was solely dismissed on the ground of one day delay  

although there were valid  reasons for  the alleged delay.  He  

further contended that the High Court failed to appreciate that  

the request for issue of Receipt Order (R.O.) on the re-opening

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day, is deemed compliance with limitation period as provided  

in Section 4 of the Limitation Act and, hence, the High Court  

directed the Plaintiff-Buyer to file an application for extension  

of time by a single day. This request of the Plaintiff-Buyer to  

issue the R.O. on re-opening day is to be construed as deemed  

compliance under the Limitation Act read with Section 28(6) of  

the Karnataka Civil Courts Act, 1964. Learned counsel for the  

Plaintiff-Buyer also contended that the Trial Court also failed to  

consider  the  matter  on  merits  in  O.S.  No.439/2006  and  

dismissed  the  application  for  extension  of  time  solely  on  

technical  ground,  and  in  contravention  of  Section  5  of  

Limitation Act.  According to  the learned counsel,  in  view of  

Section 5 of the Limitation Act, both the Trial Court and the  

High Court erred in not condoning the delay from 07.01.2010  

to 10.02.2010 in  filing the application for  extension of  time  

before the Trial Court. Further, the learned counsel argued that  

the  acceptance  of  deposit  of  money  by  the  Court  on  

29.05.2007, in itself amounted to implied grant of extension of  

time by the Court. In support of the said contention, he relied  

on  the  case  of  Md.  Alimuddin  v.  Waizuddin  and  Anr.,  

(1998)  9  SCC  108.  He  also  submitted  that  the  procedure

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should  only  be  an  aid  to  achieve  justice  and  procedural  

technicalities should not be used to abuse the process of law.  

On the point of the third party interest being created in the suit  

property, he submitted that the purchaser (Sri Rajesh) of the  

suit  property  is  not  a  bona fide purchaser.  Alternatively,  he  

argued that the concept of bona fide purchaser does not find  

relevance  when  the  principles  of  lis  pendens apply.  He  

submitted that as per Section 52 of the Transfer of Property  

Act, 1882, no transfer of any immoveable property during the  

pendency of any suit or proceeding in relation to that property  

can take place except with the authority of the Court in which  

such  suit  or  proceeding  in  pending.  On  the  basis  of  these  

submissions, he contended that the title of the purchaser as  

per sale deed dated 20.06.2007 is defective as against him.

10. Learned counsel  for  the  Defendant-Seller,  on  the  other  

hand, contended that under Section 28(1) of the Specific Relief  

Act read with Section 151 of CPC, the Trial  Court alone has  

power  to  extend the  time to  satisfy  the  conditional  decree.  

When the Trial Court had exercised its discretion and granted  

extension  of  two  months’  time  for  making  payment  of  the  

balance  consideration  amount,  even then the  Plaintiff-Buyer

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failed to pay on time and in the prescribed mode. In addition to  

this,  counsel  for  the  Defendant-Seller  contended  that  the  

Plaintiff-Buyer  has  not  given  notice  to  the  respondent  of  

delayed payment by cash. Defendant-Seller had no notice of  

delayed payment by cash. The learned counsel submitted that  

as  per  Order  XXI  Rule  2  of  CPC,  the  judgment-debtor  is  

required to give notice to the decree-holder of the deposit of  

any money in Court. He contended that in the present case,  

even  though  the  Plaintiff-buyer  is  a  decree-holder,  yet  the  

obligation of notice would apply to him also. In absence of this  

notice,  learned counsel  contended that  the Defendant-Seller  

was in his right to sell the property to a third party. He further  

reinforces the justification for sale deed dated 20.06.2007 by  

pointing out that the decree in this case was a conditional one  

and self operative in case of non-compliance. Since, the decree  

clearly mentioned that if the amount of balance consideration  

is not deposited within the period stipulated therein, the suit  

shall be deemed to have been dismissed. The Plaintiff-Buyer  

lost his right under the decree as soon as the time granted  

under the decree expired by not complying with the decree.  

The learned counsel further argued that the mode of deposit of

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the amount was not in terms of the decree as the amount was  

deposited in cash while the decree required the deposit to be  

made in the form of demand draft. Thus, the learned counsel  

submitted  that  the  Plaintiff-Buyer  had  completely  failed  to  

obey the commands in the decree.  

11. Arguments  were  also  made by  the  learned  counsel  on  

both sides as to which Court had the power to grant extension  

of  time  and  several  authorities  were  cited  on  this  point.  

However, we find that after the execution Court had dismissed  

the execution proceeding on the ground of delay in depositing  

the amount, the same question was dealt with by the original  

side of the Trial Court as well in the application for extension of  

time.  Since  both  the  Courts  have  given  concurrent  findings  

that the case for extension of time was not made out, we are  

of the opinion that dealing with the question as to which Court  

had the jurisdiction to decide this point, will be an exercise in  

futility. It would suffice to say that the Court has the discretion  

to  extend the time upon an  application  made by  the  party  

required to act within a stipulated time period. Extension of  

time  can  be  granted  even  after  the  expiry  of  the  period  

originally fixed. In Johri Singh v. Sukh Pal Singh and Ors.,

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(1989) 4 SCC 403, this Court observed:

“This  Section  empowers  the  Court  to  extend  the  time fixed by it even after the expiry of the period  originally fixed. It by implication allows the Court to  enlarge the time before the time originally fixed. The  use of ‘may’ shows that the power is discretionary,  and  the  Court  is,  therefore,  entitled  to  take  into  account the conduct of the party praying for  such  extension.”

12. From  a  perusal  of  the  judgment  and  decree  dated  

15.2.2007 passed by the Trial Court, it is clear that the period  

of one month granted for depositing the balance consideration  

started from the date of decree. From the records it appears  

that  the  decree  was  signed  on  27.2.2007.  Therefore,  the  

period  of  one month  started  from 27.2.2007 and ended on  

26.3.2007. After extension of two months was granted, the last  

date for depositing the amount of balance consideration fell on  

26.5.2007. As the Civil  Court was not working on 26.5.2007  

and next date i.e., 27.5.2007 was Sunday, the Plaintiff-Buyer  

was to deposit the amount on 28.5.2007, which was the re-

opening day. However, there is no evidence on record to show  

that he made efforts to deposit the balance consideration on  

28.5.2007 or made an application on 28.5.2007.  The R.O. is  

dated 29.5.2007 and deposit was made on 29.5.2007. Thus,  

the Plaintiff-Buyer failed to comply with the decree and the suit

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stood dismissed automatically.  

13. The Trial Court rightly held that the decree-holder did not  

make the deposit within the time stipulated by the Court nor  

the deposit  of  the balance consideration was made through  

the mode as stipulated by the Court, and that being the case,  

the suit will have to be deemed as dismissed. The Trial Court  

further  held  that  the  decree-holder  is  not  entitled  to  seek  

execution of decree, which does not exist in the eye of law and  

consequently the Trial Court dismissed the execution petition.  

Further, we have already discussed the order of the Trial Court  

in the application for extension of time and we do not take the  

contention  of  the  Plaintiff-Buyer  that  the  application  was  

dismissed  solely  on  the  technical  ground  and  that  the  

application was filed after a delay of 3 weeks. The Trial Court  

has discussed full merits of the application and given a finding  

that there is no evidence to show that the plaintiff had made  

any  effort  to  deposit  the  amount  on  the  28.05.2007.  The  

application was dismissed on its merits and not merely on the  

technical grounds.  Further,  we accept the submission of the  

learned  counsel  for  the  Defendant-Seller  that  the  Plaintiff-

Buyer had even failed to make the deposit through the mode

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of payment as required by the decree.  

14. Having given above findings, the obvious corollary is that  

since the Plaintiff-Buyer failed to comply with the terms of the  

decree,  the  suit  stood  dismissed  as  the  order  passing  the  

decree was a peremptory order. In light of this, we do not find  

it necessary to address the arguments made by the counsel on  

the point of bona fide purchaser. Further, the contention that  

the  acceptance  of  deposit  made  by  the  Plaintiff-Buyer  on  

29.05.2007  is  an  implied  grant  of  extension  of  time  is  a  

misplaced  one.   Reliance  cannot  be  placed  on   Md.  

Alimuddin v. Waizuddin and Anr., (1998) 9 SCC 108, as in  

that case there was an application for extension of time which  

was granted, though at the risk of the depositor, along with the  

deposit of amount. This Court in the said case held that when  

the Court had allowed the application for extension of time in  

its  wisdom,  there  was  no  reason  to  disturb  it  later.  In  the  

present case, there is rather a reverse situation wherein the  

Trial Court has dismissed the application for extension of time  

giving due reasons. In view of above findings, the question as  

to whether the Plaintiff-Buyer was required to give notice of  

the amount deposited also need not be answered,  although

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we  believe  that  had  the  Plaintiff-Buyer,  irrespective  of  any  

obligation under law, given notice of the deposit made to the  

Defendant-Seller  it would have helped the case of the Plaintiff-

Buyer.

15. Thus, in the present case, the Plaintiff-Buyer has clearly  

defaulted  on  time  of  depositing  as  well  as  the  mode  of  

payment.  The  decree  was  self-operative  and  the  suit  stood  

dismissed  for  non-compliance  of  the  decree.  Further,  the  

Plaintiff-Buyer also failed to make out a case for condonation of  

delay.  In view of these findings, we are of the opinion that the  

questions formulated by the High Court in the order of remand  

are  not  required  to  be  answered  by  the  Trial  Court.  

Consequently,  the  appeal  filed  by  the  Plaintiff-Buyer  is  

dismissed  and  the  appeal  filed  by  the  Defendant-Seller  is  

allowed.  There shall be no order as to costs.  

….....…..…………………..J. (J. Chelameswar)

                                       ...........…………………….J.                         (Pinaki Chandra  Ghose)

New Delhi; March 27, 2015.

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ITEM NO.1A               COURT NO.12               SECTION IVA (For judgment)                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

C.A. No....../2015 @ SLP (C) No(s). 5840/2012 (Arising out of impugned final judgment and order dated 22/08/2011  in  WP  No.  6449/2010  passed  by  the  High  Court  Of  Karnataka  At  Bangalore) P.R.YELUMALAI                                      Petitioner(s)                                 VERSUS N.M.RAVI                                           Respondent(s) WITH C.A. No..../2015 @ SLP(C) No. 10852/2013 Date : 27/03/2015 These petitions were called on for  

pronouncement of judgment today. For Petitioner(s) Ms. Lata Krishnamurti, Adv.

Dr. B. Kalaivannan, Adv. Mr. Neeraj Shekhar, Adv. Mr. Ashutosh Thakur, Adv. Ms. P.R. Mala, Adv. Mr. Pranav Diesh, Adv. Mr. Karan Kalia, Adv. Mr. I. Elangovan, Adv.

                                      Ms. Anjana Chandrashekar, Adv. For Respondent(s) Ms. Anjana Chandrashekar, Adv.          Ms. Lata Krishnamurti, Adv.

Dr. B. Kalaivannan, Adv. Mr. Neeraj Shekhar, Adv. Mr. Ashutosh Thakur, Adv. Ms. P.R. Mala, Adv. Mr. Pranav Diesh, Adv. Mr. Karan Kalia, Adv. Mr. I. Elangovan, Adv.

                               Hon'ble  Mr.  Justice  Pinaki  Chandra  Ghose  pronounced  the  

reportable judgment of the Bench comprising Hon'ble Mr. Justice J.  Chelameswar and His Lordship.

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Leave granted in both the matters. The appeal filed by the Plaintiff-Buyer is dismissed and the  

appeal filed by the Defendant-Seller is allowed with no order as  to costs in terms of the signed reportable judgment.

(R.NATARAJAN)        (SNEH LATA SHARMA)  Court Master       Court Master

(Signed reportable judgment is placed on the file)