Basalingappa vs Manohar

Mohan M. Shantana Goudar, J.—Petitioner herein filed suit in O.S. No. 173/1990 for specific performance of the agreement of sale dated 15.05.1990 against respondent Nos. 1 and 2 herein and their mother who entered into an agreement of sale with the petitioner herein. The property involved in the suit is an agricultural land bearing Sy. No. 34 measuring 8 acres 19 guntas of Manihal village, Ramdurg taluk. Suit came to be decreed on 25.07.1994. The decree passed in O.S. No. 173/1990 is confirmed by this Court in R.F.A. No. 374/1994. Review Petition was filed before this Court in C.P. No. 1216/2000 which also came to be dismissed. As against dismissal of Review Petition and the judgment passed in Regular First Appeal, the judgment debtors approached the Apex Court which also came to be dismissed on 13.11.2000. Thereafter, the decree holder filed Execution Petition No. 41/2001 on 17.02.2001 seeking execution of the judgment and decree passed in O.S. No. 173/1990 along with IA-I and IA-II. IA-I was filed seeking permission to deposit the balance of sale consideration of Rs. 45,000/- and IA-II for appointment of Commissioner to execute the sale deed. Both the applications were kept pending. No orders were passed. Ultimately, on 01.08.2008, the Executing Court allowed IA-I and permitted the decree holder to deposit the balance sale consideration of Rs. 45,000/- in the Court. IA-II was also allowed appointing the Court Commissioner to execute the sale deed in favour of the decree holder as per the decree passed in O.S. No. 173/1990. The matter was adjourned to 18.08.2008. However, on that day, the decree holder did not deposit the balance of sale consideration. Hence, the matter was adjourned to 10.09.2008. On that day, an application came to be filed under Order I Rule 10 of the CPC by one Mr. Giriyappa S/o Manohar Gadadar claiming that he is one of the legal representatives of the deceased/judgment debtor No. 1. Along with the very application, another application is filed by the very impleading applicant praying for staying the Execution Petition No. 6/2007. Subsequently, on 13.11.2008, an application came to be filed by the original defendant Nos. 2 and 3 (judgment debtors) under Section 28 of the Specific Relief Act for rescinding the suit agreement dated 15.05.1990 and for other reliefs. The application filed under Section 28 of the Specific Relief Act for rescinding the agreement of sale was numbered as Miscellaneous Application No. 5/2008. Along with Miscellaneous Application No. 5/2008, one more application is filed for staying the Execution Petition. The order sheet maintained by the Execution Court reveals that the subsequent adjournments were given for filing statement of objections to the aforementioned applications. Subsequently, on 15.11.2008, further proceedings in Execution Petition were stayed in Miscellaneous Application No. 5/2008. Thereafter, the impugned order is passed on 21.11.2009 allowing Miscellaneous Petition No. 5/2008 on the ground that the decree holder has failed to deposit Rs. 45,000/- the balance of sale consideration of Rs. 45,000/- as ordered by the trial Court in O.S. No. 173/1990 in its decree. The order in Miscellaneous Application No. 5/2008 is impugned in this writ petition.

Learned advocates appearing on both the sides have taken the Court through the material on record and submitted their respective cases.

It is relevant to note the operative portion of the decree passed in O.S. No. 173/1990 before proceeding further which reads thus:

"The suit of the plaintiff Basalingappa Mulangi in O.S. No. 173/1990 is decreed with costs against defendants 1 to 3.

Defendants 1 to 3 are directed to execute the registered sale deed is favour of the plaintiff Basalingappa Mallappa Mulangi of Manihal Tal: Ramadurg, within one month from the date of decree by receiving balance consideration amount of Rs. 45,000/-.

In case of the defendants 1 to 3 fail to execute the registered sale deed within one month from the date of decree, the plaintiff Basalingappa Mulangi is at liberty to deposit the balance consideration amount Rs. 45,000/- in court and to get the registered sale deed through court."

From the aforementioned, it is clear that the judgment debtors/respondents herein were directed to execute the registered sale deed in favour of the decree holder/petitioner herein within one month from the date of the decree by receiving the balance sale consideration of Rs. 45,000/-. In case, if, the defendants 1 to 3 failed to execute the registered sale deed within one month from the date of the decree, the decree holder was at liberty to deposit the balance sale consideration of Rs. 45,000/- in the Court and get the registered sale deed through the Court. Hence, it is clear that no time was stipulated to the decree holder to deposit Rs. 45,000/-. Undisputedly, in the matter on hand, the decree holder filed Execution Petition No. 41/2001 on 17.02.2001 which was re-numbered as Execution Petition No. 6/2007. The said Execution Petition was filed within three months of the date of the decree. It is also not in dispute that along with the Execution Petition, two applications were filed by the decree holder i.e., IA-I and IA-II. The first application i.e., IA-I was filed seeking the Court to deposit a sum of Rs. 45,000/- i.e., the balance of sale consideration. IA-II was filed for appointment of Commissioner for getting the sale deed executed. Thus, it is clear that the decree holder had sought permission of the Executing Court to deposit Rs. 45,000/- as per the decree passed in O.S. No. 173/1990 on 17.02.2001 itself i.e., within three months of the date of the decree. Unfortunately, the said application was kept pending before the Executing Court without passing any order and consequently, the decree holder could not deposit the balance of sale consideration of Rs. 45,000/-. So also, the Commissioner was not appointed for executing the sale deed. After a long legal battle, both the applications were allowed by the Executing Court on 01.08.2008 i.e., after the lapse of about 7 years. In view of the same, it is clear that the decree holder is not at fault at all. The decree holder could not have deposited the amount of Rs. 45,000/- till the Executing Court permitted him to deposit. Since the permission was granted only on 01.08.2008, the time runs against him to deposit Rs. 45,000/- from 01.08.2008. Reasonable time of about 3 to 4 months should have been given to the decree holder for depositing the balance of sale consideration. However, in the meanwhile, the proceedings in Execution Petition were stayed on 15.11.2008, as is clear from the order-sheet maintained by the Executing Court. It is no doubt true, that the decree holders did not deposit Rs. 45,000/- as ordered by the Executing Court from 01.08.2008 to 15.11.2008. But, for the said minor fault of the decree holders, they should not be punished by passing the order of rescinding the original contract itself.

The Executing Court had taken about 7 years'' time to pass orders on IA-I and IA-II since the applications were opposed tooth and nail by the decree holder by raising all types of grounds. Ultimately, the applications came to be allowed on 01.08.2008. Therefore, the Executing Court should have given some breathing time to the decree holder to deposit Rs. 45,000/-, more particularly, when the decree passed by the trial Court is confirmed upto the Supreme Court.

The fruits of the decree should not be allowed to go waste on hypertechnical ground of delay of three months. Admittedly, the decree holder had asked for permission to deposit Rs. 45,000/- as back as in the year 2001 itself, i.e., immediately after passing of the decree. Therefore, looking to the totality of the facts and circumstances of the case, the Court below should have permitted the petitioner/decree holder to deposit Rs. 45,000/-.

Per contra, the Court below has passed the impugned order allowing the application filed under Section 28 of the Specific Relief Act concluding that the original agreement which took place between the decree holder and the judgment debtors stands rescinded. The power under Section 28 of the Specific Relief Act should be used in reasonable manner and only where one of the party has faulted gravely. In the matter on hand, as aforementioned, the decree is passed for specific performance and the same is confirmed by this Court as well as the Apex Court. The decree holder sought permission to deposit Rs. 45,000 -balance of sale consideration within three months of the date of decree by filing the application along with the Execution Petition itself. In view of the same, this Court does not find any fault on the part of the decree holder. On the other hand, the fault lies with the judgment debtors who have dragged on the proceedings before the Executing Court from 2001 till the passing of the impugned order. Strangely, the Miscellaneous Application filed under Section 28 of the Specific Relief Act is allowed only on the ground that the decree holder has not deposited Rs. 45,000/- within one month from the date of decree. Such direction was not given by the Court which passed the decree. Option was given to decree holder to file Execution Petition by depositing Rs. 45,000/- in case of failure on the part of Judgment Debtors. The same is clear from the portion of the decree mentioned supra. In view of the same, the impugned order is liable to be quashed. Accordingly, the same stands quashed.

The decree holder shall deposit Rs. 45,000/- within three weeks from this day, if, not already deposited and the further proceedings shall take place thereafter.