MUKUL MUDGAL , J - (1.)BY THIS APPLICATION THE DEFENDANT IS SEEKING EXTENSION OF TIME TO PERFORM CERTAIN OBLIGATIONS IN RESPECT OF SETTLEMENT BETWEEN THE PARTIES DATED 20TH AUGUST, 2002 APPROVED BY THIS COURT. IT IS NOT IN DISPUTE THAT THE SETTLEMENT WAS ARRIVED AT BY VIRTUE OF A JOINT APPLICATION BY THE PARTIES UNDER ORDER XXIII RULE 3 CPC. THE PRINCIPAL SUBMISSION OF MR. CHANDHIOK, LEARNED COUNSEL FOR THE APPLICANT/DEFENDANT IS THAT HE IS SEEKING EXTENSION OF TIME ONLY BY 12 DAYS TO COMPLY WITH THE CONDITIONS IMPOSED BY THE SAID TERMS OF SETTLEMENT. THUS THE QUESTION OF LAW WHICH HAS BEEN RAISED AND ARISES FOR DETERMINATION IS THE POWER OF THIS COURT TO EXTEND THE TIME AND ALTER TERMS OF SETTLEMENT BETWEEN THE PARTIES NOTWITHSTANDING THE OPPOSITION BY ONE OF THE PARTIES TO THE SETTLEMENT. THE LEARNED SENIOR COUNSEL FOR THE APPLICANT MR. CHANDHIOK HAS RELIED UPON PROVISIONS OF SECTION 148 CPC TO CONTEND THAT WHERE ANY PERIOD IS FIXED OR GRANTED BY THE COURT FOR THE DOING OF ANY ACT PRESCRIBED OR ALLOWED BY THE CODE, THE COURT MAY, IN ITS DISCRETION, FROM TIME TO TIME, ENLARGE SUCH PERIOD, EVEN THOUGH THE ORIGINALLY FIXED PERIOD MAY HAVE EXPIRED. SECTION 148 CPC READS AS FOLLOWS:- "148. ENLARGEMENT OF TIME - 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, [NOT EXCEEDING THIRTY DAYS IN TOTAL] EVEN THOUGH THE PERIOD ORIGINALLY FIXED OR GRANTED MAY HAVE EXPIRED."
(2.)HE STATES THAT THE PHRASE 'ANY PERIOD FIXED OR GRANTED BY THIS COURT' USED IN SECTION 148 NEED NOT BE FULLY GOVERNED BY THE DOING OF ANY ACT PRESCRIBED OR ALLOWED BY THIS CODE AND WOULD ALSO INCLUDE A SITUATION SUCH AS THE PRESENT CASE. HE HAS ALSO RELIED ON THE JUDGMENT OF SUPREME COURT IN SMT. PERIYAKKAL AND OTHERS VS. SMT. DAKSHYANI, AIR 1983 SC 428, THE RELEVANT PORTION OF WHICH READS AS FOLLOWS:-
"TRUE, THE COURT WOULD NOT RE-WRITE A CONTRACT BETWEEN THE PARTIES BUT THE COURT WOULD RELIEVE AGAINST A FORFEITURE CLAUSE; AND, WHERE THE CONTRACT OF THE PARTIES HAS MERGED IN THE ORDER OF THE COURT, THE COURT'S FREEDOM TO ACT TO FURTHER THE ENDS OF JUSTICE WOULD SURELY NOT STAND CURTAILED. NOTHING SAID IN HUKAMCHAND'S CASE MILITATES AGAINST THIS VIEW. WE ARE, THEREFORE, OF THE VIEW THAT THE HIGH COURT WAS IN ERROR IN THINKING THAT THEY HAD NO POWER TO EXTEND TIME. EVEN SO, SHRI JAWALI SUBMITTED THAT THIS WAS NOT AN APPROPRIATE CASE FOR GRANTING ANY EXTENSION OF TIME. WE DESIRE TO EXPRESS NO OPINION ON THAT QUESTION. THE HIGH COURT WILL DECIDE THAT QUESTION. WE ACCORDINGLY, SET ASIDE THE JUDGMENT DATED 15TH JANUARY, 1979 OF THE HIGH COURT AND DIRECT THE HIGH COURT TO DISPOSE OF I.A. NO. VII IN EXECUTION SECOND APPEAL NO. 89/74 AFRESH IN ACCORDANCE WITH LAW. THE PARTIES WILL BEAR THEIR OWN COSTS."
HE HAS CONTENDED THAT THE ABOVE JUDGMENT APPLIES TO THE PRESENT CASE ON THE GROUND THAT THE DICTA OF LAW LAID DOWN BY THE SUPREME COURT TO THE EFFECT THAT WHERE THE CONTRACT OF PARTIES MERGES IN THE ORDER OF THE COURT, THE COURT'S POWER OR FREEDOM TO ACT FURTHER THE ENDS OF JUSTICE WOULD NOT STAND CURTAILED.
(3.)HE HAS FURTHER RELIED UPON THE JUDGMENT OF CALCUTTA HIGH COURT IN SMT. MANGALA GHOSH VS. RABINDRA NATH HAZRA, AIR 1987 CALCUTTA 307 AND IN PARTICULAR PARAGRAPH NO. 17 OF THE JUDGMENT WHICH READS AS UNDER:
"17. THEREFORE, RELYING UPON THE DECISIONS REPORTED IN 33 CAL LJ 244 : (AIR 1921 CAL 356(2)); AIR 1970 CAL 199 AND AIR 1983 SC 428 AND ALSO FOLLOWING THE DECISION IN TAPAN KR. CHATTERJEE'S CASE (AIR 1982 CAL 243) (SUPRA) AS IN MY VIEW THE DECISION IN SUNITY CHANDRA BOSE'S CASE (AIR 1985 CAL 282) (SUPRA) IS NOT IN CONFLICT WITH THE TAPAN KUMAR CHATTERJEE'S CASE (SUPRA) ON THE POINT THAT UNDER S. 28 OF THE SPECIFIC RELIEF ACT, 1963, THE COURT CAN EXTEND THE TIME FOR DEPOSIT OF THE PURCHASE-MONEY OR BALANCE OF THE PURCHASE-MONEY, I HOLD THAT UPON AN APPLICATION MADE BY A PARTY THE COURT CAN EXTEND THE TIME STIPULATED IN THE COMPROMISE PETITION UPON WHICH THE CONSENT DECREE HAS BEEN PASSED IN A SUIT FOR SPECIFIC PERFORMANCE OF CONTRACT, EVEN WITHOUT ANY CONSENT OF THE OTHER PARTY, AS IN SUCH A CASE THE TIME SO STIPULATED IS NOT THE ESSENCE OF THE CONTRACT AND IS A PENAL CLAUSE AND SUCH TIME BECOMES PART OF THE COURT'S ORDER AND THE COURT IS EMPOWERED TO RELIEVE THE PARTY CONCERNED OF THE RIGOURS OF SUCH PENAL CLAUSE IN APPROPRIATE CASES."