Case No: Civil Petition for Leave to Appeal No. 431 of 1997
Judge: Bimalendu Bikash Roy Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Akram Hossain Amin,,
Citation: 50 DLR (AD) (1998) 161
Case Year: 1998
Appellant: Idris Shaikh
Respondent: Jilamon Bewa and others
Subject: Specific Performance,
Delivery Date: 1997-12-11
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
Jilamon Bewa and others
December 11, 1997.
The Code of Civil Procedure, 1908
In a case where a court passes a decree for specific performance of contract the court retains the jurisdiction to extend time under section 148 of the Code of Civil Procedure, to deposit any outstanding amount decided even though the decree contains a default clause that in default of the plaintiff to make the requisite payment within the period fixed by the court the suit shall stand dismissed. Nothing to differ with the view…………………….(5)
Case Referred to-
Ashraf Ali @ Uddin Mondal and another vs. Bayla Hasda and others, 17 DLR 593.
Akram Hossain Amin, Advocate-on-Record - For the Petitioner.
Not represented- The Respondents.
Civil Petition for Leave to Appeal No. 431 of 1997
Bimalendu Bikash Roy Choudhury J.
This petition arises out a suit for specific performance of a contract for sale. The petitioner brought the suit to enforce the contract against respondents No. 1 and 2 who were defendants. The trial Court decreed the suit on 29 August, 1990. The defendants appealed therefrom. The learned District Judge of Rajshahi allowed the appeal and set aside the decree on 22 August, 1992 with a direction that the defendants were to refund Taka 20,000.00 which was paid as an advance and Taka 5,000.00 as compensation to the plaintiff within three months in default the plaintiffs suit would stand decreed in full without any order as to costs. Being aggrieved the plaintiff preferred Civil Revision No. 3503 of 1992 to the High Court Division. A Single Bench of the said court, by judgment and order dated 6 June 1996 discharged the Rule modifying the appellate decree by way of enhancement of the amount of solatium to Taka 8,000.00 from Taka 5,000.00 with a direction that the amount should be paid within four months from the date of the judgment. The records were sent to the trial Court after disposal of the Rule, which reached the court on 13 October, 1996. Thereafter the defendants filed an application for depositing the solatium of Taka 8,000.00 along with the advance taken by them. The trial Court rejected the prayer on the ground that the decree passed by the High Court Division would stand, the time for deposit having elapsed.
2. The defendants then came back to the High Court Division with an application for extension of time for making the requisite deposits on the ground that they were ladies and that there was none to look after their case. The plaintiff resisted it. A learned Single Judge of the High Court Division allowed the prayer for extension of time, by his order dated 3 December 1996.
3. It is from this order that the plaintiff has sought leave to appeal.
4. It is urged that since the suit had already stood decreed for non-compliance with the court order, the High Court Division had no jurisdiction to grant extension of time for deposit of solatium and refund of the advance.
5. The self-same ground was taken by the plaintiff before the learned Judge of the High Court Division who, relying on the decision in Ashraf Ali @ Uddin Mondal and another vs. Bayla Hasda and others, 17 DLR 593, found himself competent to grant the extension and passed the order extending the time for deposits. In a case where a court passed a decree for specific performance of contract the court retains the jurisdiction to extend time under section 148 of the Code of Civil Procedure, even though the decree contains a default clause that in default of the plaintiff to make the requisite payment within the period fixed by the Court the suit shall stand dismissed. This is the view which appears to have been taken in the above cited case from which we have no reason to differ. We have nothing to interfere in this case.
The petition is dismissed accordingly.