K. Ahmad, J.

1. This appeal is by the decree-holders. The main point involved in this case is whether the time fixed in a decree for the specific performance of a contract for the payment of purchase money by the vendee is open to be extended or varied by the Court passing the decree.

2. The facts giving rise to this appeal are as follows : -- There was a suit instituted by the decree-holder for the specific performance of a contract of sale of some agricultural lands. At the trial the suit was dismissed, but in appeal the judgment given by the trial court was reversed and the appellate Court came to the view that the suit should stand decreed. This was on the 31st January; 1955. The exact operative portion of the order passed in appeal was in these words : --

"The result is that the findings and judgment of the learned lower Court are reversed. The plaintiff is entitled to specific performance of her contract and her suit is to be decreed with costs and pleaders fee at the minimum contested scale. Plaintiff is directed to deposit Rs. 300/- as the balance of the consideration money within a month of this order. Defendants 1, 2 and 3 are directed to execute a sale deed for the suit land in favour of the plaintiff failing which the sale-deed will be executed through Court. This appeal is accordingly allowed with costs and pleaders fee Rs. 24/-."

It is the admitted case of the parties that the sum of Rs. 300/- referred to in the order passed by the appellate Court was not deposited by the vendee in time as stipulated therein. It is said that the decree-holder thereafter on the 22nd March, 1955, for the first time put in an application for permission to deposit that amount praying therein that for the reasons as stated by him in that application, the time granted by the Court of appeal should be extended. This application was taken up for orders on the 23rd March, 1955. The Court, on hearing the parties, passed the following order on the same day -

"Record received from the Court of the 2nd Additional Subordinate Judge Sasaram. Plaintiffs petition dated 22-3-55 for issue of chalan for deposit of the balance of the consideration money as ordered by the trial court amounting to Rs. 300/-put up. Order :

Issue chalan at the plaintiffs entire risk."

The decree-holder, in pursuance of the aforesaid order, it is not denied, did deposit money on the 24th March, 1955. Thereafter, on the 8th June, 1955, the decree-holder put in an application for the execution of the decree which related to the performance of the contract in his favour. This application was numbered as Execution Case No. 45 of 1955. While this execution application was pending, a miscellaneous proceeding was started at the instance of the judgment-debtor with the plea that the execution petition was not maintainable in law in view of the fact that the performance of the contract by the defendants was subject to the payment of Rs. 300/- as decreed by the appellate Court and as the same was not paid within the period stipulated in the decree passed by the appellate Court, the decree as passed thereunder was not executable.

This objection against the execution of the decree in substance was based on the contention that the Court had no jurisdiction to extend the time which was fixed by the appellate Court for the payment of Rs. 300/-. In other words, the provisions of law as laid down in Section 148 of the Code of Civil Procedure did not apply to the facts of the case. That being so, any payment made by the decree-holder subsequent to the period fixed by the appellate Court was not payment in the eye of law. The Court of execution accepted this contention raised by the judgment-debtor, and in doing so observed that

".......... even if she was ill, in my opinion time cannot be extended. A court which passes a decree for specific performance of contract to sell lands has no power or jurisdiction to extend the time fixed for payment of the purchase money, nor can an appellate court do so either under Section 148 or Section 151 C. P. C. In result, the applicants succeed and it is therefore ordered that the miscellaneous case be allowed On contest with cost of Rs. 16/- only."

Against this order which was passed on the 9th February, 1956, the decree-holder came up in appeal in Miscellaneous Appeal No. 28/8 of 1956. That was disposed of by Mr. S. S. Hussain, Additional Subordinate Judge, by his order dated the 27th September, 1956. In the opinion of the learned Subordinate Judge, the view taken by the Court of execution was right. Accordingly, the appeal was also dismissed. Hence this Miscellaneous Appeal by the decree-holder.

3. Mr. Tarkeshwar Nath appearing for the appellants has contended that the two Courts below have failed to realise that in this case the decree passed for specific performance of the contract was one in the nature of a preliminary decree, and that being so, the Court had full jurisdiction to extend or alter the time as fixed in the judgment by the appellate Court. In support of this contention reliance has been placed by the learned Advocate on the decisions in Abdul Shaker Sahib v. Abdul Rahiman Sahib : : AIR 1923 Mad 284 [LQ/MadHC/1922/279] : ILR 46 Mad 148 [LQ/MadHC/1922/279] ), Mt. Rama Bhatlu v. Mt. Annayya Bhatlu : AIR 1926 Mad 144 [LQ/MadHC/1925/52] , Abdur Rahim Molla v. Tamijaddin Molla, : AIR 1933 Cal 580 [LQ/CalHC/1933/5] , Gokul Prasad v. Fattelal AIR 1946 Nag 29 and Ko Ba Chit v. Ko Than Daing AIR 1927 Rang 311. On this point the leading judgment given in our country seems to be the one which is reported in : : AIR 1923 Mad 284 [LQ/MadHC/1922/279] : ILR 46 Mad 148 [LQ/MadHC/1922/279] ).

This decision was given by a division, bench of the Madras High Court. The leading judgment in that case is by the learned Chief Justice Sir Walter Salis Sohwabe. The other learned Judge Wallace, J. agreed with him, but on a ground slightly different. The view taken by the learned Chief Justice was that the decree passed in such a case is mostly in the nature of a preliminary decree. Therefore, it is open to the Court under Section 148 of the Code of Civil Procedure to alter or extend the time fixed therein for the payment of the purchase money.

In support of this view the learned Chief Justice has taken into consideration the practice prevailing in the Chancery Courts in England as also the implication that arises from Section 35(c) of the Specific" Relief Act, 1877. Accordingly, he held :

"It would seem to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts an end to the action and that the control of the Original Court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may, as in the present case, be of a greater value than the contract purchase money, which perhaps by some accident the purchaser has failed to produce on the date fixed."

Wallace, J., as already stated, though he agreed with the order passed by the learned Chief Justice, gave his own reasons for it. According to the learned Judge, the transaction, despite the adjudication given by the Court on that matter remains in the realm of contract, and, therefore, unless the contract is rescinded by any of the parties to it, the mere failure on the part of the vendee to pay the consideration or part of the consideration as stipulated in the document cannot destroy the contract,

He also accordingly held that it was within the power of the Court to extend the time as provided in Section 148 of the Code of Civil Procedure. This case has been followed in the other cases referred to above, though in some preference has been given to the view taken by the learned Chief Justice and in others to the view taken by Wallace, J. In my opinion, apart from the other reasons given by the learned Chief Justice, Section 35(c) of the Specific Relief Act clearly suggests that the decree passed in a suit for specific performance of a contract for the purchase of immovable property remains more or less as a preliminary decree unless the purchase money is paid or for the default in the payment of the same the contract is got rescinded. The relevant portion of that section reads : --

"35. 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) ..........

(b) ..........

(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.

* * * * *

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".

It is true that the language of the last clause, as observed in Kurpal Hemraj v. Shamrao Raghunath Taote AIR 1923 Bora 211 is rather not free from difficulty. But reading it as a whole, the only reasonable interpretation that can be put to it is that the phrase "in the same case" refers to the case provided in Clause (c) of Section 35. If that is so, then that section makes it clear that in order to avoid the effect of the decree in the case of non-payment of purchase money by the vendee as adjudicated thereunder the defendant has to take certain step and unless that step is taken the matter remains pending.

In other words, until that stage has arrived or the contract is rescinded the suit remains pending and as such the Court has got the power to alter or extend the time under Section 148 of the Code of Civil Procedure. This view perhaps was not placed before the learned Single Judge who decided the case in Amanatullah Mian v. Raghunath Prasad, : AIR 1930 Pat 279 [LQ/PatHC/1930/24] . In his opinion, the Code of Civil Procedure being silent on the point as to the fixation of time in a case like this by the Court it was difficult for him to accept that such an alteration or extension could be done in exercise of the power given under Section 148 of the Code of Civil Procedure. Technically, there may be some force in this view of the matter. But I think that, looking substantially at the problem, the decree passed in a suit for specific performance of contract of sale, providing therein a time period for the payment of the purchase money, is in the nature of a preliminary decree, and if that is so, then the Court remains in seisin of the case until the money is paid or the contract is got rescinded as provided in Section 35(c) of the Specific Relief Act.

In that view of the matter, it has to be held that the provision as laid down in Section 148 of the Code of Civil Procedure is available to the Court for the alteration or extension of time if thought fit and proper. As such, with all respect to the learned Judge I think the view taken in : AIR 1930 Pat 279 [LQ/PatHC/1930/24] cannot be supported.

4. But Mr. Sarwar Ali appearing for the respondents has strongly stressed that any interpretation of a decree like this as a preliminary decree on the ground of law as provided in Section 35(c) of the Specific Relief Act is not at all warranted in law. According to Mr. Sarwar Ali", the very provision made in Section 35(c) suggests that as an exception to the rule special provision has been made therein to get a contract rescinded in spite of the fact that the suit for specific performance of that contract has been decreed. I think that in view of the reasons given in the decisions referred to above as also in view of what I have just stated it is difficult to accept this contention,

5. Lastly Mr. Sarwar Ali has also raised the contention that the conditions as to payment and as to the performance of the specific contract in such cases are mutual and inter dependent. Therefore, according to him, the moment there was a failure of payment within the time as stipulated in the decree, the obligation imposed thereunder on the defendant for the specific performance of contract has to be held as discharged.

This contention, in my opinion, in view of what I have already held, is not necessary to be decided; for, if it is accepted that the time could be extended and that the sum was paid within tune, the question of failure does not remain to be considered. The lower appellate Court has observed that "As a matter of fact in this case that discretion was exercised originally by the predecessor-in-office of the learned Munsif who passed the order, who in spite of the fact that under the judgment Ext. 1 the plaintiff was to deposit Rs. 300/- within one month from 31-1-1955 permitted the amount to be deposited under the chalan Ext. A dated 24-3-1955 on the ground of illness of the plaintiff as is evident from her petition Ext. "B".

But it thought, as already stated above, that this payment was not sanctioned in the eye of law. That view, however, being wrong, it has to be held for the reasons stated above that the payment made was one as permissible in law. That being so, the alternative contention raised by Mr. Sarwar Ali does not arise for consideration, though I feel that even on that point the case of the defendants cannot be supported.

6. Accordingly, the judgment and order of the lower appellate Court is set a.side the appeal is allowed. But in the circumstances of the case, there will be no order for costs. The execution proceed ing will now proceed in due course.