Chanda vs Rattni and Another

N.K. Sodhi, J.—This is a plaintiff''s revision petition directed against the order dated 15.9.1998 passed by the Civil Judge (Senior Division), Kaithal rescinding the agreement to sell dated 25.3.1989 and dismissing the execution application. Facts giving rise to this petition may first be noticed.

Defendants-respondents entered into an agreement dated 25.3.1989 to sell land measuring 54 Kanals 13 Marlas to the plaintiff and received Rs.56,000/- as earnest money. The sale deed was to be executed on or before 15.6.1989 on payment of the balance sale consideration of Rs. 1,39,000/-. Since the defendants did not execute the sale deed within the time specified in the agreement the plaintiff-petitioner instituted a suit on 24.1.1990 for specific performance of the agreement to sell. The suit was decreed ex parte on 1.5.1992 and it is common case of the parties that the decree has become final between them. Para 6 of the judgment of the trial Court decreeing the suit reads as under:-

"For the reasons discussed above, the suit succeeds. A decree for possession of the suit land by way of specific performance is hereby passed in favour of the plaintiff and against the defendants with costs. Defendants are directed to execute the proposed sale deed on payment of the balance sale price of Rs. 1,39,000/- and get it registered within a period of two months from the date of this decree failing which the plaintiff shall be at liberty to get the sale deed executed and registered under Order 21 Rule 12 C.P.C. Decree be drawn up accordingly and file the consigned to the record room."

The plaintiff did not deposit the balance sale price within two months from the date of the decree nor did the defendants execute the sale deed. Plaintiff then moved an application on 10.10.1992 for the execution of the decree pleading therein that since the judgment debtor respondents had failed to execute the sale deed the same be executed through Court and that he (plaintiff) be allowed to deposit the balance sale price in Court. During the pendency of this application one Sarup Singh through his general attorney moved an application for being impleaded as a party in the execution proceedings on the plea that he was the owner in possession of the suit land on the basis of a decree dated 26.7.1991 which the defendants are alleged to have suffered in his favour. The executing Court as per its order dated 14.8.1995 allowed the applicant to be impleaded in the execution proceedings. Sarup Singh then filed objections to the execution application which were dismissed as per order dated 10.9.1998 and it was held that he was not a bona fide purchaser of the suit land. On 8.9.1998 the judgment debtors-respondents moved an application u/s 28 of the Specific Relief Act (for short the Act) with a prayer that the agreement to sell dated 25.3.1989 be rescinded since the plaintiff-petitioner had failed to deposit the balance sale consideration within the time allowed by the Court. This application was contested by the petitioner-plaintiff and on a consideration of the contentions advanced by the counsel for the parties the trial Court as per its order dated 15.9.1998 allowed the application and rescinded the original contract dated 25.3.1989 holding that the plaintiff had failed to deposit the balance sale consideration within the time allowed by the Court. The execution application filed by the plaintiff-petitioner was consequently dismissed. Hence the present revision petition.

Learned counsel for the petitioner has assailed the impugned order of the trial Court on the ground that the Court while decreeing the suit for specific performance had directed the defendants-respondents to execute the sale deed within two months from the date of the decree and since they failed to do that the plaintiff was entitled to have the sale deed executed through Court. He referred to para 6 of the judgment to contend that since there was no direction given to the plaintiff to deposit the balance sale consideration within a stipulated period the trial Court grossly erred in law in rescinding the contract on account of non deposit of the balance sale price by the plaintiff. He also contended that the defendants-respondents claim to have sold the land to Rajinder son-in-law of Sarup Singh as per agreement to sell dated 10.7.1991 and that Sarup Singh claims to have become the owner thereof by virtue of the decree dated 26.7.1991 and since the defendants have washed their hands of the suit land the original agreement dated 25.3.1989 should not have been rescinded.

Shri R.K. Gupta learned counsel for the respondents, on the other hand, contended that since the plaintiff did not deposit the balance sale consideration within the period prescribed in the decree the Court was justified in rescinding the contract u/s 28 of the Act.

Having given my thoughtful consideration to the rival contentions of the parties, I find merit in what is contended on behalf of the defendants-respondents. A perusal of para 6 of the judgment of the trial Court as reproduced above whereby the suit for specific performance was decreed makes it clear that the defendants had been directed to execute the sale deed within two months from the date of the decree on payment of the balance sale price of Rs. 1,39,000/-. Payment of the balance sale consideration was, therefore, a condition precedent for the execution of the sale deed. It is implicit in the direction that the plaintiff was required to deposit the balance sale consideration within the stipulated period in the first instance and it was only then that the defendants were required to execute the sale deed. Admittedly, the plaintiff has not deposited the balance sale consideration so far. Since he failed to perform his part of the obligation under the decree the defendants were not obliged to execute the sale deed. Now when the suit for specific performance was decreed and the plaintiff failed to deposit the balance sale consideration within the period fixed by the Court the defendants had a right to ask the Court to rescind the agreement to sell because of the default committed by the plaintiff. It is not the case of the plaintiff-petitioner that he ever applied for extension of time to the Court. Section 28 of the Act is clear and enables the Court to rescind the contract where in pursuance to the decree for specific performance the plaintiff makes default in the payment of the purchase money or other sum as ordered to be paid by the court. In this view of the matter, no fault can be found with the impugned order. The fact that Sarup Singh was impleaded as a party in the execution proceedings or that the objections filed by him were dismissed by the executing Court of that the defendants claim to have sold the land to any subsequent purchaser are not relevant for the purpose of determining whether the trial Court was justified in rescinding the agreement to sell. The view that I have taken finds support from a judgment of this Court in Onkar Nath and Anr. v. Basheer and Ors. (1985) 88 P.L.R. 432.

In the result, the revision petition fails and the same stands dismissed. There is no order as to costs.