' This is a petition under section 115 of the C.P.C, by the plaintiff, decree-holder, Amjad Malik, seeking the revision of the order of the learned Civil Judge, Lahore, dated 21-2-1988, rejecting the petitioner's application for the extension of time for depositing decretal amount of Rs,22,00,000.
2. By a consent decree dated 4-1-1988, the suit of the plaintiff, Amjad Malik, for the specific performance of an agreement of sale was decreed and the plaintiff was directed to deposit the sale consideration, Rs,22,00,000 by 3-2-1988. The order also said that if the said sum was not deposited by the specified date, the suit would stand dismissed. On 3-2-1988, the plaintiff made an application before the leamed Civil Judge, asking for an extension in time for the reasons stated in the application. This application was opposed by the judgment-debtors, respondents herein, and was dismissed by the leamed Civil Judge's order dated21-2-1988; in the view of the leamed Civil Judge, no such extension could be granted.
3. Leamed counsel for the plaintiff argued that the question whether the plaintiff was or was not entitled to the extension of time fell to be determined under section 35 of the Specific Relief Act and the leamed Civil Judge was wrong in treating the matter as a matter falling under section 148 of the C.P.C. For his contention, he relied upon my judgment reported as Nizain-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1682. He also cited a case from the Indian jurisdiction, namely, Smt. Periyakkal and others v. Smt. Dakshyani 1984 PSC 33. Leamed counsel for the respondents contended that a distinction has to be made between a consent and a contested decree; in his view, as the time was here fixed with the parties' consent, it was in the nature of a contract and the Court had no power to extend it. He was also of the view that the law makes no distinction between decrees in specific performance suits and decrees in other suits and sought to support his contention by Syed Ahmad Shah and 2 others v. Muhammad Yar and 6 others 1974 SCMR 191, Saat Malook v. Rozi Khan 1979 SCMR 593, Shamsuddin and others v. The Rainbow Dyeing and Printing 1986 SCMR 295 and Amanullah v. Abdul Ghani and another 1980 SCMR 573.
4. In Nizam-ud-Din's case, I had the occasion to consider this question, namely, "whether the Court which passed a decree is competent to alter it by allowing an extension of time specified in the decree itself for payment of the purchase money which the Court had ordered him to pay". After stating the general rule that unless otherwise provided, a Court is not competent to alter a decree and that neither section 148 nor the residuary section 151 of the Code of Civil Procedure avails a person who seeks the alteration; that it is well-settled that section 148 does not apply where the period is fixed by a decree unless the decree is in the nature of a preliminary decree and the Court still retains season over the action and that it is also well-settled that section 152 of the C.P.C, too does not apply in such cases, I had observed that there is respectable authority, which has treated the decrees in suits for specific performance as a category apart, the reason for so treating these decrees being section 35 of the Specific Relief Act, 1877. For these principles, I had referred to Shah Wali v. Ghulain Din PLD 1966 SC 983 at 1000) and the leading authority on the subject, Abdul Shaker v. Abdul Rahiman (AIR 1923 Mad. 284) and some of the cases, in which that authority had been followed. As was observed by Wallace, J in the leading authority Abdul Shaker v. Abdul Rahiman, "no special form for drafting a decree for specific performance is supplied by the Civil Procedure Code, as is supplied by it in the case of a decree in a pre-emption suit by Order XX, Rule 14, which directs that, if the purchase money is not paid as stipulated in the decree, the suit shall be dismissed with costs. Hence the analogy of decree, etc. In pre-emption suits and reported rulings thereon is not of assistance in this case". In that connection, I had considered the effect of the word "sue" in section 35, which word, at first sight, appeared to present some difficulty in its application to a case, in which a decree for specific performance had already been passed. This difficulty, it was observed, was more apparent than real, for we must read the word "sue" in its setting, that is in the context of the section as a whole, particularly clause (c), and the following words in the last paragraph thereof, namely, "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 as regards the party in default or altogether as the justice of the case may require". So read, the word "sue", it was held, "seems to have been used not in the sense of suit as that expression is technically understood, but in its ordinary dictionary meaning namely to institute legal proceedings; to make application to a law Court. So that the action, when under clauses (a) and (b) may be in the form of a formal suit, and when under clause (c) may be in the form of an application or petition". It was added, and I venture to quote: "The significance of section 35 lies in this that the power that it gives is the power to rescind or not to rescind the contract even though a decree has been passed; and it appears to follow as a natural corollary that if the Court, in its discretion, does not order the rescission of the contract, despite there being a default in the payment of money in accordance with the decree, it may to allow the decree to remain operative, enlarge the time.
' It seems to me, therefore, that by necessary implication, section 35,clause (c), empowers the Court to enlarge the time specified in the decree.
' At any rate, there should be no doubt that one clear effect of section 35 is that the Court has not, with the passing of the decree, become functus officio and that is what takes it out of the general rule, stated above."
5. None of the cases other than a Single Bench case from the Indian jurisdiction, Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Bombay 104, cited by the respondent's counsel appears to be directly in point, for they were not suits for specific performance and did not, therefore, turn upon section 35 of the Specific Relief Act. Bhujangrao Ganpati's case referred to above was decided with reference to section 28 of the Specific Relief Act, 1963 (which Act, it appears, has there taken the place of the Specific Relief Act, 1877).
6. Section 28 of the 1963 Act is the successor section of section 35 of the 1877 Act. It gave effect to what has always been understood to be the law, by providing, that where in any suit, a decree for specific performance has been made and the purchaser does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require.
7. In Bhujangrao Ganpati's case, a decree for specific performance had been passed directing the purchase money to be deposited by a specified date and saying that the suit would stand dismissed if the money was not so paid. Vimadalal, J agreed with the view taken in another case that "in a conditional decree for specific performance of the nature contemplated by section 28(1) of the Specific Relief Act, 1963, the Court would have the power to grant an extension of the time for payment fixed under that decree". Vimadalal, J, however, was of the opinion that the case before him was not a decree under section 28(1) of the Specific Relief Act; "it is a self-operative final decree which provides in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. In the case of such a decree, it is impossible to apply the provisions of section 28 of the Specific Relief Act, 1963, which, for instance, provides for a subsequent application for the rescission of the contract itself, and for certain consequential orders". Vimadalal J derived support for this view from a decision of a Division Bench of that Court also a case under section 28 of the 1963 Act, where it had been held that "the failure on the part oJ the plaintiffs to carry out the terms of the decree had automatically resulted ir the disposal of the suit and the Court had become functus officio and had nc power to grant an extension of the time fixed by the decree".
8. As was held in Shah Wali's case, the rule that where the period is fixec by a decree, the Court has no power to extend the period, rests upon the principle that 'a decree normally puts an end to a suit' and 'the power of the Court to pass any other order with respect to that particular suit thereafter also comes to an end and the Court becomes functus officio with regard thereto' unless the decree is in the nature of a preliminary decree and the Court still retains seizing over the action.
As section 35 of the Specific Relief Act, 1877 itself empowers the Court to rescind or not to rescind the contract despite the decree and the default of the purchaser in the payment of purchase money, it should follow logically that in the case of such a decree, the Court does not become focus officio and retains control over the action even after the decree. Two questions, therefore, arise: "(1) Whether in a case where the decree also says that the suit shall stand dismissed in default of the payment of the purchase money, the Court has become functus officio with the passing of the decree; and
(2) Whether in such a case, the contract stands rescinded automatically with effect from the date specified in the decree for the payment of the purchase money and there is, therefore, no contract to be rescinded.
9. True that the Code of Civil Procedure does not supply the form for a decree in a suit for specific performance, yet there is no provision in the Code of Civil Procedure and none was cited precluding the Court from fixing a date for the payment of the purchase money and at the same time ordering that the suit shall stand dismissed in case the payment is not made timeously. In such a case, the Court has indicated in advance that the contract would stand determined by the failure to make the payment by the appointed date. Some support is lent to this view by the following observations of Wallace, J in Abdul Shaker v. Abdul Rahim an: "It is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree. It is not determined until the Court orders that it is determined. By the decree for specific performance the Court sets out what it finds the real contract between the parties was, and declares that such contract exists and gives what it considers a reasonable time within which the contract shall be carried out. Regarding the decree from this point of view, as contract, it is clear in this case, tis in most others of the same kind, that time is not of the essence of the contract, and that, until the contract is rescinded by formal order or decree, such time for performance, not being an essential part of the contract, may be varied by the Court which has declared what the essential terms of the contract are."
10. Here, the Court had, while passing the decree, made a formal 6rder that the suit would stand dismissed in case the condition of the payment of the purchase money by the appointed date was not performed. That order in the decree was also a formal rescission of the contract effective from the date specified in the decree. It seems to be inexorable logic, therefore, that the order in the decree that the suit shall stand dismissed produced the result that after theappointed date, the Court had become functus officio and also that after that date, the contract was no more in existence. It is equally plain that the power under section 35 of the Specific Relief Act, 1877, being the power to rescind the contract, the contract must be in existence for that power to operate upon. To rescind means to annul, to abrogate, to put an end to. The power to rescind, therefore, presupposes the existence of what is to be rescinded; for just as you cannot build anything on nothing, you cannot rescind something that does not exist.
11. I would, therefore, respectfully adopt the view taken in Bhujangrao Ganpati's case and hold that both because the Court had become functus officio and the contract stood rescinded by the order in the decree itself that the suit would stand dismissed, the learned trial Judge rightly held that he had no power to extend the period for the payment of the purchase money.
12. In the result, the revision petition fails and is dismissed, but the parties are left to bear their own costs.