(1.)Heard the submission of the learned Senior Advocate Mr. S. P. Roy Chowdhury appearing with the learned Advocate Mr. Saptangshu Basu and the learned Advocate for the opposite party Mr. Jagjibon Ghosh appearing with the learned Advocate Miss Bhaswati Pal. Considered the materials on record.
(2.)By this revision under S. 115 of the C.P.C. the petitioner, who is the defendant in the suit, has challenged order dt. 29-11-1995 passed in Title Suit No. 123 of 1993 by the Assistant District Judge, 5th Court, Alipore, 24-Paraganas (South), whereby the learned Assistant District Judge, allowed the petition of the plaintiff made under S. 151 of the C.P.C. without any cost and gave liberty to the petitioner to deposit a sum of Rs. 20 lakhs for a period of one year in the fixed deposit account subject to renewal with the development of the suit in any branch of the State Bank of India, situate within the territorial jurisdiction of that court. The fact that has given rise to this order impugned is that earlier a suit was filed by the plaintiff for specific performance of contract in the court of the Assistant District Judge, 5th Court, Alipore, 24-Paraganas (South) being Title Suit No. 103/91 against the husband of the present petitioner. The said suit ended in a compromise and a decree has been passed upon such compromise petition as has been agreed to and entered into by and between the parties in that suit. The petition of compromise was enclosed or annexed with letter 'A' and clause 3 of that petition runs to this effect that the plaintiff or his nominee will deposit the said sum of Rs. 20,00,000/- at a time or by instalment with M/s. Or, Digman and Co. 29-Netaji Subhas Road, Calcutta-700001 within 7 days from the date of receipt of the sanction of the building plan by the Calcutta Municipal Corporation or within 12 months from the date thereof whichever is earlier. In any event, upon deposit of Rs. 20,00,000/plaintiff will have an exclusive right to sign, execute and register the deed of conveyance on behalf of defendant No. 1 in favour of his nominee or nominees. It will be apposite to mention here that the plaintiff in that suit is the plaintiff in that suit and the defendant is the present defendant. Paragraph 14 of that agreement of compromise also runs to this effect that if the plaintiff fails to comply with the provisions contained in clause 3 of that agreement then the agreement for sale and purchase of the said premises shall automatically stand discharged after the period mentioned in clause 3 without any action whatsoever from and claim or demand against the plaintiff and the defendant. Admittedly, after the said compromise in Title Suit No. 103/91, the original defendant Shri Dopti Kumar Bose died and the estate came in the hand of his widow Smt. Uma Bose, who is the defendant in the present suit and has figured as defendant No. 1. The plaintiff, who is the opposite party No. 1 herein, by a subsequent suit being Title Suit No. 123/93 before the Assistant District Judge, 5th Court, Alipore, 24-Paraganas (South), inter alia, prayed :-
"a) a decree of declaration that the defend ant No. 1 is bound to admit, acknowledge and act in accordance with the decree dt. 6th July, 1992 and the terms of settlement annexed thereto in Title Suit No. 103 of 1991 3 of the 5th Court of Assistant District Judge at Alipore;b) A decree of declaration that the defendant No. 1 is to help and assist the plaintiff and his nominees by granting General Power of Attorney duly registered in terms of settlement granted by her husband and predecessor in interest of the suit property to free the same and to get sanctioned plans;c) A decree of declaration that the acts and things as are done or are being done or to be done in relation to the suit property by the plaintiff shall always be treated to be the acts deeds and things done by the defendants;d) A decree of declaration that the defendant is bound to adjust the sum of Rs. 2,00,000/- advance against the consideration accepted on 6th July, 1992.e) A decree of damages after the amount is being assessed on payment of additional court fee for which damage is tentatively valued at Rs. 5,000/-;f) Mandatory injunction commanding the defendant to execute and register a General Power of Attorney in terms of the terms of settlement annexed to decree dated 6th July, 1991 passed in Title Suit No. 103/1991 by the 6th Court of Assistant District Judge at Alipore;g) A permanent injunction restraining the defendant, her men, agent, assigns and transferees from entering into the suit premises, from changing and or interferring with the possession of the plaintiff in any manner whatsoever save and except in due course of law;h) Leave to proceed with the pending and proper representation and writ application for freeing the suit property and for getting plans duly sanctioned;i) Leave to add several parties and causes of action under O. 2, R. 2 of the Code of Civil Procedure;j) For all costs of the suit;k) For any other or further relief or reliefs, decree or decrees as the plaintiff may be found entitled to under the law and equity."
In that suit, the plaintiff, that is, the O.P. No. 1 herein made an application under S. 151 of the C.P.C. inter alia, praying :
"a) To permit the petitioner to furnish Bank Guarantee of Rs. 20,00,000/- and/or to deposit the entire consideration money of Rs. 20,00,000/- in the court with liberty to place the same in fixed deposit in any Nationalised Bank till the date of execution and registration of sale deed;b) To permit the defendant No. 1 to withdraw Rs. 18,00,000/- therefrom on the date of the execution and registration of sale deed in favour of the plaintiff or in favour of his nominee are done by her by freeing the land from acquisition proposal of the Calcutta Municipal Corporation by producing the N.O.C. from Urban Land Ceiling Authority etc. within two months or as the learned court may permit;c) To disburse the balance Rs. 2,00,000/- on the date the suit is being finally disposed of and of with interest to the wining party;d) Alternatively, on the failure of the defendant No. 1 permit the plaintiff with all power to free the suit property from acquisition proposal at the cost of the defendant No. 1;e) And/or pass such other or further orders as the learned court may deem fit and proper."
(sic.)On that petition the impugned order has been passed by the trial court.
(3.)In the backdrop of this Mr. Roy Chowdhury contended that order is illegal and erroneous. He further contended that as there is a specific provision for the purpose of depositing the money in suit for specific performance the provision of S. 151 of the C.P.C. cannot be resorted to and cannot be attracted. In support of his submission Mr. Roy Chowdhury referred to certain provision of the C.P.C. and also to the provision of the Specific Relief Act. Though Mr. Roy Chowdhury did not dwell on the question of maintainability of the suit, but then he referred to O. 23, R. 3(a) of the C.P.C. 4 Section 47(3) of the said Code and Order 21, Rule 32(1) of the C.P.C. and also Section 148 of that Code for the purpose of showing that such a relief cannot be granted in that suit. He further contended that it was available to the plaintiff in the suit and not in the earlier suit to approach the Court which passed the decree for permitting the plaintiff in the suit to deposit the money or for extension of the time as contemplated under Section 148 of the C.P.C. or under Section 28(1) of the Specific Relief Act. Regarding the bar of the suit, Mr. Roy Chowdhury referred to Order 23, Rule 3(a), Section 47(3) and Order 21, Rule 32(1) of the C. P. Code for the purpose of showing that what the Court could do in the event of non-compliance of a decree passed in a suit for Specific Performance of Contract.