Page 1 1

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,

Page 2 2

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-

Page 3 3

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

Page 4 4

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

Page 5 5

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-

Page 6 6

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

Page 7 7

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

Page 8 8

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

Page 9 9

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

Page 10 10

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

Page 11 11

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

Page 12 12

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. ,

Page 13 13

(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

Page 14 14

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

Page 15 15

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

Page 16 16

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.

Page 17 17

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.

Page 18 18

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)