P. R. YELUMALAIversusN.M. RAVI

                    [2015] 4 S.C.R. 163



                     P. R. YELUMALAI                           A
                             v.
                         N.M. RAVI

              (Civil Appeal No. 3213 of 2015)                  B

                     MARCH 27, 2015

                [J. CHELAMESWAR AND
             PINAKI CHANDRA GHOSE, JJ.]                        c
        Decree: Execution of - Decree holder did not make
the deposit within the time stipulated by court nor the deposit
of balance consideration was made through the mode as
stipulated by court - Payment made after stipulated date - D
Execution application dismissed by trial court- Held: Since
decree holder failed to comply with the terms of decree, suit
stood dismissed automatically - Decree holder was rightly
held to be not entitled to seek execution of decree which does
not exist in the eyes of law.                                   E

       Disposing of the appeals, the Court

      HELD: The judgment passed by the trial court
showed that the period of one month granted for F
depositing the balance consideration started from the
date of decree. 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 G
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
                                                               H
                            163
164         SUPREME COURT REPORTS                 [2015] 4 S.C.R.



A     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
B     comply with the decree and the suit stood dismissed
      automatically. 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
C     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 decree-holder was not entitled to
      seek execution of decree, which did not exist in the
      eye of law. The trial court gave a finding that there was
D     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. The Plaintiff-Buyer has clearly
      defaulted on time of depositing as well as the mode of
E     payment. [Paras 12to14] [174-G-H; 175-A-G]

        Md. Alimuddin v. Waizuddin and Anr. (1998) 9 SCC 108:
        1997 (2) SCR 199 - distinguished.

F       Johri Singh v. Sukh Pal Singh (1989) 4 SCC 403: 1989
        (1) Suppl. SCR 17: 1989 (1) Suppl. SCR 17 -referred
        to.

                        Case Law Reference

G 1997 (2) SCR 199                    distinguished. Para 11

      1989 (1) Suppl. SCR 17          referred to.      Para 14

         CIVILAPPELLATE JURISDICTION : Civil Appeal No.
H   3213of2015.
             P. R. YELUMALAI v. N. M. RAVI                      165



      From the Judgment and Order dated 22.08.2011 of the        A
High Court of Karnataka at Bangalore in WP No. 6449 of 2010.

                           WITH
C .A. No. 3214 of 2015.
                                                                 B
       Lata Krishnamurti, Dr. B. Kalaivannan, Neeraj Shekhar,
P. R. Mala, Pranav Diesh, Karan Kalia, I. Elangovan, Ashutosh
Thakur, Anjana Chandrashekar, for the appearing parties.

       The Judgment of the Court was delivered by               c
        PINAKI CHANDRA GHOSE, J. 1. Leave is granted
in both the matters.

        2. These cross appeals have been filed against the       o
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       E
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, one P.R. Yelumalai, who is the appellant in the F
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 arryount. G
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 H
166         SUPREME COURT REPORTS                 . [2015] 4 S.C.R.


A 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
B objection to the Court decreeing the suit in favour of the
  Plaintiff-Buyer. Accordingly, the suit was decreed on
  15.02.2007 and the laintiff-Buyer was directed to deposit the
  balance sale consideration of Rs.33,60,000/- by way of
C 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-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
D 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
E 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
F 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. 0.) for depositing the said amount. However
G 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
H
              P. R. YELUMALAI v. N. M. RAVI                          167
              [PINAKI CHANDRA GHOSE, J.]

alleged deposit. The Defendant- Seller sold the property in           A
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 !Ind Additional Civil
Judge (Sr. Division), which was dismissed on 20.10.2008.
The llnd Additional Civil Judge observed as follows:                  B

  "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                 c
  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
                                                                      D
  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,                 E
  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            F
  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                  G
  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
                                                                      H
168      SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     of the J.Dr.

      8. 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.
B     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
c
                     xxx   xxx    xxx

      9. Thus the D.Hr. is entitled for seeking exclusion of
      vacation period while calculating the extended period of
D     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
E     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
F     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
G
      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
H
              P. R YELUMALAI v. N. M. RAVI                           169
              [PINAKI CHANDRA GHOSE, J.]

   the balance consideration on 28.5.2007 and made                    A
   an application for issue of RO. on 28.5.2007 itself there
   is no material placed beforethecourtbythe D.Hr. Hence,
   as the endorsement on the order sheet in O.S. 439/06
   reveals that RO. is dated 29.5.2007 and deposit is
   made on 29.5.2007 it is clear that even though the D.Hr.           B
   was required to make the deposit on the re-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 C
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
                                                                0
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.                                             E

        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           F
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
                                                                     G
  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 funi 1er extension of time according to            H
170          SUPREME COURT REPORTS                    [2015] 4 S.C.R.



A         his whims and 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
B         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.
c
          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
D
          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
E         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
F         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
G         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/-.
H     .
             P. R. YELUMALAI v. N. M. RAVI                      171
             [PINAKI CHANDRA GHOSE, J.]

   Thus under the said circumstances the application filed       A
   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 B
Writ Petition No.6449/2010. The High Court remanded the
matter to Trial Court by formulating four questions to be
answered by it, which were: li) 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 C
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
                                                                  0
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.                                                               E
        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 F
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 day, is G
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
                                                                 H
172         SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A     issue the R.O. on re-opening day is to be construed as
      deemed complic.nce 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
B     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,
C     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
D     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 andAnr., (1998) 9 SCC 108. He also submitted
      that the procedure should only be an aid to achieve justice
      and procedural technicalities should not be used to abuse the
E     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.
F     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
G     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
H
               P. R. YELUMALAI v. N. M. RAVI                        173
               [PINAKI CHANDRA GHOSE, J.]

  the other hand, contended that under Section 28(1) of the          A
  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           B
  then the Plaintiff-Buyer 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.         C
  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-     D
  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       E
  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-             F
  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 the amount was not in terms of the decree as the       G
· 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.
                                                                     H
174       SUPREME COURT REPORTS                     [2015] 4 S.C.R.


A           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
B · 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
C 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 p~rty required to act within a stipulated time
D 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., (1989) 4 SCC 403, this Court observed:

       "This Section empowers the Court to extend the time
E      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
F      party praying for such extension."

          12. From a perusal of the judgment and decree dated
  15.2.2007 passed bytheTrialCourt, itisclearthat the period
  of one month granted for depositing the balance consideration
G 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
H
              P. R. YELUMALAI v. N. M. RAVI                          175
              [PINAKI CHANDRA GHOSE, J.]

on 26.5.2007.As the Civil Court was not working on 26.5.2007 A
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 B
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 stood dismissed automatically.

        13. The Trial Court rightly held that the decree-holder      C
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 thatthe decree-holder is not entitled    D
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     E
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        F
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         G
through the mode 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
                                                                      H
176           SUPREME COURT REPORTS              [2015] 4 S.C.R.



A 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-
s 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 andAnr., (1998) 9 SCC 108, as in
  that case there was an application for extension of time which
C 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
D 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 we believe that had the Plaintiff-Buyer, irrespective
E 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
F 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
G 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
H allowed. There shall be no order as to costs.
      Devika Gujral                              Appeal disposed of.