Civil Appeal No 3527 of 1979
Appeal by Special leave from the Judgment and order dated the 15th JaNuary 1979 of the Karnataka High Court in Executive Second Appeal No 89 of 1974
Dr YS Chifale R B Datar and Miss Madhu Mool Chandani for the Appellants
section C Javali Ranjit KtJmar and B P Singh for the Respondent
The Judgment of the Court was delivered by CHINNAPPA REDDY J
The respondent Dakshyani sued to recover a sum of RS
732486 paise from Narayana Swami husband of the first appellant and father of the rest of the appellants
The suit was decreed with costs and in execution of the decree certain property situated in Bangalore City was brought to sale
The decree holder purchased the property at the execution sale held on August 19 1969 for a sum of Rs 28000
Narayana Swami having died in the meanwhile his legal representatives the present appellants filed an application under the provisions of order 21 Rule 90 for setting aside the sale on various grounds
The Executing Court dismissed the application on March 28 1973 but on an appeal preferred by the appellants the sale was set aside on July 31 1974
The respondent filed a second appeal to the High Court of Karnataka
At the hearing of the second appeal the parties entered into a compromise with the leave of the Court such leave being necessary since mally of the present appellants were minors then 469 and are minors even now
The Court granted leave and made an order in terms of the compromise
The term of the compromise which we are concerned is that the present appellants agreed to deposit and the present respondent agreed to receive a sum of Rs 60000 in full and final settlement of the decree
If the deposit was made on or before November 30 1976 the sale which though confirmed by the Trial Court but set aside by the Appellate Court was to stand set aside and the second appeal of the respondent was to stand dismissed
If the amount of Rs 60000 was not deposited on or before November 30 1976 the second appeal was to stand allowed and the sale was to stand confirmed
Time was stated to be the essence of the contract between the parties
The applellants were permitted under the compromise to raise funds by sale mortgage etc
Of the property in question
The appellants failed to deposit the amount in terms of the compromise
It appeaIs that they were unable to raise the necessary funds as they could not evict the tenant who was in occupation of the property
Finally the appellants filed an application purporting to be under sections 148 and 151 of the Civil Procedure Code to extend the time for depositing the sum of Rs 60000 in terms of the compromise dated June 24 1976
The High Court dismissed the application on the ground that the Court could not extend time where time had been stipulated by the parties themselves in the compromise arrived at between them
The High Court purported to rely upon the decision of this Court in Hukumchand vs Bansilal and Orsl Shri R B Datar Learned Counsel for the appellants urged that there was no limitation on the power of the Court to extend time under section 148 c P c and that where a compromise had been made an order of the Court it was certainly open to the Court to extend time under section 148 c P c
He relied upon the decision of the High Courts of Bombay and Calcutta in Marketing and Advertising Associates Pvt Ltd vs Telerad Pvt
Ltd2 Jadabendra Nath Mishra vs Manorama Debya3
He distinguished the decision of this Court in Hukum Chand vs Bansilal
Shri Javali Learned Counsel for the respondent on the other hand urged that time should not be extended by the Court 470 in law and on principle where the parties themselves had agreed upon the time within which the amount was to be deposited
In Hukamchand vs Bansilal the real question which was considered was if a mortgaged property was sold in execution of a mortgage decree and if the application to set aside the sale under order 21 Rule 90 was dismissed but time was granted by consent of parties for depositing the decretal amount etc
could time be extended for depositing the decretal amount etc
to avert the confirmation of sale under order 34 Rule S except with the consent of the parties
The answer was no 
Court said on the dismissal of an application under order 21 Rule 90 confir mation of sale under order 21 Rule 92 had to follow as a matter of course
Order 34 Rule S merely permitted the deposit to be made at any time before confirmation of the sale and there could be no question of extending the time for such deposit
If parties agreed to have the con firmation of sale postponed further postponement would be possible by agreement of parties only
The Court would have no say in the matter
148 C P C would have no application
The position was clarified by the Court thus  The judgment debtor mortgagor had the right to de posit the amount at any time before confirmation of sale within 30 days after the sale or even more than 30 days after the sale under order XXXIV Rule S l so long as the sale was not confirmed
If the amount had been deposited before the confirmation of sale the judgment debtors had the right to ask for an order in terms of order XXXlV Rule 5 1 in their favour
In this case an application under order XXI Rule 90 had been made and therefore the sale could not be confirmed immediately after 30 days which would be the normal course the confirmation had to await the disposal of the application under order XXl Rule 90
That application was disposed of on October 7 1958 and was dismissed
It is obvious from the order sheet of October 7 1958 that an oral compromise was arrived at between the parties in court on that day
By that compromise time was granted to the respondents to deposit the entire amount due to the decree holder and the auction purchaser by November 471 21 1958
Obviously the basis of the compromise was A that respondents withdrew their application under order XXI Rule 90 while the decree holder society and the auction purchaser appellant agreed that time might be given to deposit the amount upto November 211958
If this agreement had not been arrived at and if the application under order XXI Rule 90 had been dismis sed for example on merits on October 7 1958 the court was bound under order XXI Rule 92 1 to confirm the sale at once
But because of the compromise between the parties by which the respondents were given time upto November 21 1958 the court rightly postponed the question of confirmation of sale till that date by consent of parties
But the fact remains that the application under order XXI Rule 90 had been dismissed on October 7 1958 and thereafter the court was bound to confirm the sale but for the compromise between the parties giving time upto November 21 1958
The Court then referred to the refusal of the Court to extend time by a fortnight on November 22 1958 and further observed  The executing court refused that holding that time upto Nov 21 1958 had been granted by consent and it was no longer open to it to extend that time
The executing court has not referred to order XXI Rule 92 in its order but it is obvious that the executing court held that it could not grant time in the absence of an agreement between the parties because order XX Rule 92 required that as the application under order XXI Rule 90 had been dismissed the sale must be confirmed
We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties for time between October 7 1958 to November 21 1958 was granted by consent of parties
Section 148 of the Code of Civil Procedure would not apply in these circumstances and the executing court was right in holding that it could not extend time
Thereafter it rightly confirmed the sale as required under order XXI Rule 92 there being no question of the appli 472 cation of order XXXIV Rule S for the money had not been deposited on November 22 1958 before the order J of confirmation was passed
Tn this view of the matter we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct
In the case before us the situation Is totally different
Unlike the case of Hukam Chand vs Bansilal where there was a statuory compulsion to confirm the sale on the dismissal OF the application under order XXI Rule 90 and therefore postponement and further postponement of the confirmation of the sale could only be by the consent of the parties in the case before us there was no statutory compulsion to dismiss the application under order XXI Rule 90 in the absence of an agreement between the parties
The court would have then decided the appeal arising out of the application on the merits
The parties however entered into a compromise and invited the court to make an order in terms of the compromise which the court did
The time for deposit stipulated by the parties became the time allowed by the court and this gave the court the jurisdiction to extend time in appropriate cases
Of course time would not be extended ordinarily nor for the mere asking
It would be granted in rare cases to prevent manifest injustice
True the court would not rewrite 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 appopriate 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 that judgment dated 15th January 1979 of the High Court and direct the High Court to dispose of I A No VIII in Execution Second Appeal No 8974 in accordance with law
The parties will bear their own costs
PBR Appeal allowed


Summary:
The respondent s suit for the recovery of money from the first appellant s husband was decreed and in the execution of the decree certain property of the appellant was brought to sale
The decree holder purchased that property
The appellant s husband having died in the meanwhile his legal representatives filed an application under order XXI Rule 90 of the CPC for setting aside the sale
That application was dismissed by the executing court
On the appellant s appeal the sale was set aside
At the stage of second appeal filed by the respondent the parties entered into a compromise with the leave of the court which after granting leave made an order in terms of the compromise
Under a term of the compromise the appellants agreed to deposit and the respondent agreed to receive a sum of Rs 60000 in full and final settlement of the decree
It was also stated that if the deposit was not made on or before the stipulated date the sale was to stand confirmed and the second appeal of the respondent was to stand
Having found it difficult to deposit the money in terms of the compromise the appellants filed an application under Ss 148 and 151 of the CPC praying that the time for depositing the money in terms of the compromise be extended
The High Court dismissed this application on the ground that the Court could not extend time where time had been stipulated by the parties in the compromise arrived at between them
In appeal to this Court it was contended on behalf of the appellants that where a compromise had been made the order of the Court it was open to the Court to extend the time under section 148 CPC
Allowing the appeal and remanding the case to the High Court to dispose of the execution second appeal afresh in accordance with the law  HELD As there was no statutory compulsion to dismiss the application under order XXI Rule 90 CPC in the absence of an agreement between the parties the Court would have decided the appeal arising out of tho application 468 on the merits
The parties in the instant case however entered into a compromise and invited the court to make an order in terms of the compromise which the Court did
The time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases
Time would not be extended ordinarily nor for the mere asking but would be granted in rare cases to prevent manifest injustice
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 not stand curtailed
The High Court was in error in thinking that they had no power to extend time
472 B F Hukumchand vs Bansilal and ors
   held inapplicable