Das Gupta, J. - (1.) This case raises a question of considerable importance and of some difficulty. The question is whether a trial court after it has ordered specific performance of a contract, on a sum or money being put in within a specified time and also ordered that if the money is not put in within that date, the suit would stand dismissed, has jurisdiction thereafter to extend the time.
(2.) The petitioner Bhutnath Das and others brought a suit for redemption of a mortgage or alternatively for specific performance for an agreement for re-conveyance. On the 23rd August 1957 the trial Judge passed the following order: "Ordered that the suit be decreed on contest with costs. Plff's alternative prayers for reconveyance of the property is allowed. Plaintiffs shall deposit the sum of Rs. 14725/- in favour of the defendant within a fortnight from to-day in court. If the deposit is made within the specified time, the defendant shall execute a deed of re-conveyance in respect of the suit properties in favour of the plffs. after the plffs would approve the draft of the deed of re-conveyance. If the defendant fails to execute the deed of re-conveyance within one month from to-day after the deposit of the said sum by the plaintiffs, the plaintiffs will be at liberty to have a deed of re-conveyance executed in their favour by this court. Court-fee paid on the plaint is sufficient. If the plffs fail to make the deposit within the specified time then the suit shall stand dismissed on contest with costs." On the 30th August, 1957 the plaintiffs filed a a petition purporting to he under Sections 148 and 151 of the Code of Civil procedure praying for extension of time for making the deposit by three months. The learned Subordinate Judge was of opinion that the court had by making the order that the suit shall stand dismissed in the event of the failure of the defendant to deposit the money within the time fixed finally lost seisin of the suit and could not enlarge the time. He was further of the opinion that even, if he had discretion in the matter it would be unreasonable to extend the time. Accordingly he rejected the application. This Rule is directed against his order rejecting the application for extension of time.
(3.) The main question is whether the trial court has in such a case jurisdiction to extend the time. If it has jurisdiction the question whether on the facts of the case an order should have been passed in exercise of that jurisdiction will have to be considered. If the court has any jurisdiction to extend the time it must be either under Section 148 or Section 151 of the Code of Civil Procedure. Section 148 of the Code of Civil Procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Code, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired. Thus where the court makes an order in an application under Order 9, Rule 13 of the Code of Civil Procedure setting aside a decree on terms as to costs or payment into court of any sum of money by a certain date and fixes a period for that payment the provisions of this section will apply as the act for the doing of which the period has been fixed is one "prescribed or allowed by this Code. It was in view of the provisions of this section that this Court extended the time in Bajranglala v. Smt. Solaki. It is to be noticed that Roxburgh, J. there said that if the order of dismissal had operated the provisions of Section 148 of the Code of Civil Procedure will not entitle the court to extend the time. The extension of time which was granted was, however, under Section 148 ot the Code of Civil Procedure. If the deposit of money that was ordered in this case could be considered to be an act prescribed or allowed by the Code there would be no doubt, in my opinion, that the court had jurisdiction under Section 148 C. P. C. to extend the time. I cannot see, however, how this deposit of money for the performance of the contract can be considered to be an act either prescribed or allowed by the Code. I have no hesitation, therefore, in holding that Section 148 C. P. C. has no application.;