The word “peremptory” is defined as “putting an end to or precluding a right of action, debate, or delay”. In the field of law, when a peremptory/conditional order or decree is passed by a court of law, its effect is that if the conditions provided under the decree or order is not complied with strictly, the rights under the decree or order will get effaced. As a consequence, the court will not have any jurisdiction over the decree or order. The genesis of this article is in the question formulated by Justice J.B. Pardiwala in a judgment[1]. The Hon'ble Judge refused to answer the question because it was not necessary for the adjudication of the matter that was before the bench in that particular case. The question reads thus –
In other words, there could be a decree which may say that if the plaintiff fails to deposit the balance sale consideration within the stipulated time period, the suit shall automatically stand dismissed. If such is the nature of the decree then will the court concerned become “functus officio” and would have no jurisdiction to grant extension of time fixed by the decree for the purpose of deposit? This is one issue that the Supreme Court one day in an appropriate case may have to consider and decide. We say so because there are conflicting views of different High Courts, including to some extent of this Court.
This article aims to address the proposed question. It would be apposite to refer to the relevant legal provisions in order to answer the question. Order XX Rule 12A of the Code Of Civil Procedure, 1908[2] lays down that in a decree for specific performance of contract, the court shall specify the period within which the payment shall be made. Section 28(1) of the Specific Relief Act, 1963[3], inter alia, states that when a decree for specific performance is passed by the court and the purchaser fails to pay the amount within the period allowed by the decree or such further period as the court may allow, the vendor may apply to the court to have the contract rescinded. Order XX Rule 3 and 6 also needs to be noted here. A combined reading of both, inter alia, brings about two propositions of law. The first being, when the judgment is signed, it shall not be altered or added to, save as provided by section 152 or in review. The second being, the decree shall agree with the judgment. Section 151 of the CPC, confers the civil court with inherent powers.
DIVERGENT VIEWS OF SUPREME COURT ON THE ISSUE FORMULATED
One of the important judgment to note on this issue is K. Kalpana Saraswathi v. P.S.S. Somasundram Chettiar[4]. In the aforesaid case the decree of the trial court provided that, if the plaintiff (purchaser) does not pay the amount within a certain time frame the suit will be automatically dismissed. It was a peremptory/conditional decree. It was challenged by way of appeal in the High court by the plaintiff on certain grounds, one of them was that trial court has no jurisdiction to pass such a conditional decree, and it won't become functus officio if the time expired. The High court dismissed the appeal but held that trial court did not have any power to supplant a default clause in the decree and set aside that part of the decree. The High court for other reasons refused to extend the time. The plaintiff, being aggrieved, went before the Supreme Court. It would be pertinent to note the observation of Supreme Court regarding the nature of specific performance decree. The observations read thus-
“Read in the light of Section 28 of the Specific Relief Act and the rulings on the point which were cited before us, the proper course in this situation was to pass a decree for specific performance, which would, for all practical purposes, be a preliminary decree. The suit would continue and be under the control of the court until appropriate motion was made by either party for passing a final decree.”
“It is perfectly open to the court in control of a suit for specific performance to extend the time for deposit, and this court may do so even now to enable the plaintiff to get the advantage of the agreement to sell in her favour”.
The Supreme Court thus did not find fault with the finding of the High court which held that trial court cannot put a default clause in the decree of such a suit. As a corollary, the court granted time to the plaintiff (appellant) to deposit the money.
Another case of the Apex court which needs to be noted is P.R. Yelumalai v. N.M. Ravi[5]. In the aforesaid case trial court passed a decree which directed the plaintiff (purchaser) to pay the amount within 1 month from the date of decree in default of which suit shall stand dismissed. The plaintiff, before the expiry of 1 month, filed an application for extension of time, which was granted by the trial court. As a corollary, the due date was 28-5-2007. The plaintiff deposited the money in the trial court on 29-5-2007. As the next step, the plaintiff filed an execution petition which was dismissed by the executing court. Assailing the said finding, the plaintiff filed a writ petition before the High court. The High court found no error in the order, but permitted the plaintiff to move the trial court in order to extend the time. In pursuance of the order, the plaintiff filed an application for extension of time, which was rejected by the trial court. The plaintiff assailed the correctness of the aforesaid finding in a writ petition before the High court. The High court formulated some questions, one of which reads thus –
“Whether the suit stood dismissed on 28-5-2007 or earlier, when the amount was not deposited in terms of the decree?”
After formulating the questions, the High court remanded the matter back to the trial court. This order of the High court was the genesis of the SLP filed before the Supreme Court by both the parties. The Supreme Court affirming the view taken by the executing court observed thus –
“Having given above findings, the obvious corollary is that since the Plaintiff-Buyer failed to comply with the terms of the decree, the suit stood dismissed as the order passing the decree was a peremptory order”.
The above view has been reiterated by the Supreme Court in a recent judgment. Justice Manoj Misra, penning down the judgment[6], held that where the decree stipulates that on failure to pay within the specified period the decree shall stand rescinded, the decree is rendered in-executable on failure to pay.
TESTING THE ISSUE FORMULATED ON THE ANVIL OF LEGISLATIVE FRAMEWORK
Having noticed the divergence of views, it is apt to consider which view is more in consonance with the intention of the legislature. Having, laid down the relevant provisions of law which would be applicable to the present issue, it is time to apply them to an illustration for a better understanding. 'A' files a suit for specific performance of a contract against 'B'. The trial court decrees the suit, and instils in the decree a default clause, in accordance with which if A (Plaintiff) does not deposit the money in court within 1 month, the suit shall stand automatically dissolved. Now, let us see the implications of such a clause on the legislative scheme of both SRA and the CPC. The CPC, does not lay down that a default clause cannot be inserted in a decree for specific performance of contract, Order XX Rule 12 A only lays down that court should specify the time frame with in which the plaintiff should deposit the money it does not talk about the consequences if the money is not deposited within the time frame, so one may argue that the court by using it's inherent power, can pass the decree with a default clause in it. This argument won't hold the ground for the reason that section 28(1) of the SRA, uses the words “within the period allowed by the decree or such further period as the court may allow”. These words are of immense importance, which tells us about the intention of the legislature. It is clear that the court 'may' having regard to the overall equitable circumstances still extend the time for depositing the money, even if the original time has expired. The court has been conferred with the power to extend the time to pay the amount and while taking into consideration the delay that is sought to be condoned by the plaintiff, the court does not adjudge the same like an application under section 5 of the limitation act, where each day's delay must be explained.[7] The wordings clearly tells that the court does not become functus officio in such a decree. The decree in a specific performance of contract is of preliminary in nature and not final. If the court is allowed to pass a decree with a condition that if the amount is not deposited within a specific time frame the suit will automatically get dismissed, it would contravene the intention of legislature which is manifested in the above said words of section 28 (1) of the SRA. The power obviously is with the court to extend the time if the original period is expired as the section uses the word “court may” , but by passing the decree in such a form it would denude the plaintiff to even file the application for extension of time, because the court by passing a decree in such a form would loose the jurisdiction over the decree if the original time expire. Section 151 of the CPC cannot be used to triumph an express provision of a law.[8]
The court is given the discretion to extend the time because at the time of passing the decree the court cannot comprehend all the circumstances which may occur in the future. Suppose in the above taken illustration, the money of 'A' is stolen then how would he be able to honour the obligation within the time specified? His only recourse then would be to file an appeal against such a decree and do away with the default clause.
Now, supposedly the time is extended by the trial court, would this action of the court be in direct contravention of Order XX rules 3&6. To answer the question, it would be fruitful to reproduce the observation of Supreme Court in the case of Balbir Singh and anr. v. Baldev Singh & ors[9]. The observation reads thus-
“It is well settled position of law that when time for payment of money is extended, it does not mean a modification of the decree”.
The issue can be looked at from another angle. Section 148 of the CPC confers the civil court with jurisdiction to extend the time, even though the time originally fixed has expired. A three judge bench of the Supreme Court in the case of Mahant Ram Das V. Ganga Das[10], opined that conditional decree won't come within the ambit of section 148 CPC. On a cursory reading of the judgment, this statement of law cannot be considered as a ratio of the judgment, because the question before the apex court was whether section 148 of the CPC would apply in case of a conditional order. The question of whether section 148 of the CPC would apply in cases of conditional decree came up for consideration before the Supreme Court in the case of D.V. Paul v. Manisha Lalwani[11] . The Supreme Court, in the aforesaid judgment, made it clear that section 148 of the CPC would apply in the case of conditional decrees also.
As an upshot of the above discussion, even if the court puts a condition in a decree the non-fulfilment of which entails the dismissal of suit, such a condition would not be given effect to. The court does not become functus officio in such a case. It can extend the time in a given case in accordance with principles of equity.
Balbir Singh & anr v. Baldev Singh & ors, 2025:INSC:81. ↑
Hereinafter 'CPC'. ↑
Hereinafter 'SRA'. ↑
1979:INSC:253. ↑
2015:INSC:271. ↑
Anand Narayan Shukla v. Jagat Dhari, 2026:INSC:463. ↑
Ram Lal v. Jarnail Singh & ors, 2025:INSC:301. ↑
Ram Prakash Agarwal & anr. v. Gopi Krishan & ors, 2013:INSC:239 ↑
2025:INSC:81. ↑
1961:INSC:34. ↑
2010:INSC:528. ↑
Author is an Advocate practicing at Delhi. Views are personal.