it is a settled position of law that generally a decree in a suit for specific performance of an agreement to sell is preliminary in its nature and scope as any such decree has an effect and ...............

 2023 MLD 404

By now it is a settled position of law that generally a decree in a suit for specific performance of an agreement to sell is preliminary in its nature and scope as any such decree has an effect and character of a contract where vendee has to deposit the purchase price, cost of purchase of necessary stamps for the execution of conveyance deed and so on and so forth, while the seller remains under an obligation to appear before Court to sign the conveyance deed and receive the purchase price. In such a situation it clearly follows that a decree passed in an action of specific performance of an agreement to sell is not final but preliminary in nature and the Court passing the decree retains seisin over the lis and obviously also retains power to enlarge or extend the time for payment of purchase price fixed therein.

There is a possibility that expression of adjudication of a decree in a suit for specific performance of an agreement to sell is conditional and the Court which grants the decree may retain jurisdiction till fulfillment of such condition including but not limited to extending the time for deposit of balance sale consideration within the period stipulated in the decree under consideration and till the time the condition is complied with within stipulated time, such decree would also be construed as a preliminary decree.

Another legal avenue can be that Court while passing the decree for specific performance of an agreement to sell, which is discretionary in its nature, may in order to curb any expected delinquency on the part of either of the parties may use the expression of adjudication by imposing a condition, for example, the stipulation of time for deposit of balance sale consideration and command a consequence of any default in respect thereof. In this situation, the whole edifice of consideration of the scope of a decree whether it is final or preliminary would depend upon the expression of adjudication used in a decree entailing a penal clause contained therein. If the expression of adjudication of a decree is such that failure of a party would lead to a legal consequence that the suit would be deemed to have been dismissed, it will only be construed as a preliminary decree till the time of fulfillment of the condition imposed by the Court within a time stipulated in the decree. The moment the time stipulated by the Court in a decree expires the penal consequence will become self-operative and the decree in such a situation would be considered as final in its ambit and scope. Obviously, in such a case the Court passing a decree would become functus officio forthwith having no power to extend or enlarge the time.

It is imperative to understand that legal expressions in a decree for specific performance of an agreement to sell entailing penal clauses such as „the suit will be dismissed‟ and „the suit will stand dismissed‟ or „the suit will be treated as dismissed‟, as each one has different connotations leading to diverse legal consequences. The analysis of consequences will assist in reaching a conclusion that under Section 148 CPC in what circumstances does the Court retains jurisdiction to extend or enlarge the time for performance of condition imposed by the decree?

In a case where decree specifies a condition to be complied with in a targeted stipulated time and in case of failure to fulfill said condition consequence thereof contains an expression „the suit will be dismissed‟ leads to a logical conclusion that failure or default of a party to lis would lead to a consequence to be followed or determined or adjudicated by the Court and in that case the effect will be that the decree is preliminary in its nature and scope. As in such cases using such terms are not words of automatic operation as they contemplate a further formal order.

Whereas, in case the expression of adjudication while passing a decree is embedded with the term that „the suit will stand dismissed‟ or „the suit will be deemed as dismissed‟ upon expiry of time stipulated in a decree are the words of finality and consequences are to take effect automatically and in such a scenario the Court will have no jurisdiction to enlarge or extend the time as any decree using such expression leads to an irresistible conclusion that the decree is final in its nature and no further steps are to be taken in case of delinquency of a party as the words are capable of operating automatically without any further order of the Court.

This distinction is not without importance as the term contained in decrees which are not strictly speaking preliminary decrees may not always be such as are intended to operate automatically without any further intervention by the Court. Therefore, these terms are the real test to identify whether the decrees have been made in such terms as to indicate the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. For extending or enlarging time under Section 148 of CPC previously fixed or granted by a Court this may be considered even a litmus test.

Section 2(2) CPC.

It is evident from the definition of term „decree‟ that the expression of adjudication by the Court may be preliminary or final. According to the Explanation contained at the foot of the said provision, the decree is preliminary if further proceedings have to be taken before whom the suit cannot be completely disposed of, whereas, it will be considered final if the expression of adjudication completely disposes of the suit. Therefore, it is the expression of adjudication and legal consequence in a suit that may assist in legally evaluating the status of a decree.