Dilip Kumar Patro vs M. Gopikrishna Rao

Sanju Panda, J.—This Writ Petition has been filed by the Petitioner challenging the Order Dated 26.6.2006 passed by the Learned Civil Judge (Senior Division), Berhampur in T.S. No. 128 of 1997 rejecting the application under Section 28(1) of the Specific Relief Act, 1963 for rescission of the contract dated 21.8.1995 as the Opp. Party did not comply with the Judgment & decree passed by the Court below & committed default in depositing the balance consideration within the stipulated time. The facts leading to the present case are that there was an agreement between the Petitioner & Opp. Party on 21.8.1995 wherein the Petitioner was agreed to sell the dispute property measuring Ac.0.44 cents for Rs. 2,17,844 to the Opp. Party & to execute the Sale Deed within a period of seventeen months from the date of agreement. Accordingly, the Opp. Party paid a sum of Rs. 35,001 to the Petitioner towards advance consideration. As the Petitioner did not execute the Sale Deed, the Opp. Party as Plaintiff filed T.S. No. 128 of 1997 before the Learned Civil Judge (Senior Division), Berhampur for specific performance of contract. The Petitioner who is Defendant appeared in the suit & filed his written, statement stating that he is ready & willing to perform his contract & the Opp. Party be directed to deposit the entire balance consideration amount with interest in Court.

The Court below taking into consideration the materials available on record & the evidence adduced by the parties decreed the suit on 07.4.2001 directing the Petitioner to execute the Sale Deed in favour of the Opp. Party within one month of the decree & the Opp. Party to pay the balance consideration amount of the agreed value within the said period failing which the Opp. Party would be at liberty to get the Sale Deed executed & registered through Courts. The Petitioner did not execute the Sale Deed as per the decree, however, he has given a false notice to the Opp. Party stating that on 28.5.2001 he will execute the Sale Deed. On receiving the notice the Opp. Party had been to the office of Sub-Registrar along with the balance consideration money. However, the Petitioner expressed his inability to execute the Sales Deed for the whole lands on the plea that he had already sold 8800 sqft. out of the schedule property to somebody else. The Opp. Party in order to show his bona fide deposited the entire balances consideration amount in Bank. Thereafter the Petitioner filed an application before the Court below under Order 47, Rule 1 of C.P.C. to modify the Judgment & decree on the ground that extent of land as agreed was not as per schedule & the extent to be reduced. The said application was registered as M.J.C. No. 91 of 2001. The Opp. Party filed his objection to the said application stating that in order to delay the proceeding the application has been filed. The Opp. Party also filed Execution Case No. 38 of 2001 to get the decree executed. The Petitioner filed an application under Section 47 of C.P.C. questioning the executability of the decree. Thereafter the Petitioner filed an application under Section 28(1) of the Specific Relief Act, 1963 (hereinafter referred to as ''the Act'') to rescind the contract. The Court below after hearing the parties came to the conclusion that there are no-reasons to hold the decree ineffective merely because the amount was not deposited within the stipulated period. The Court is competent under Section 28 of the Act to grant extension of time to deposit the purchased price even if the period fixed by the Court has been expired & without any application for extension. Section 148 of C.P.C. also empowers the Court to extend the time even if the period has already been expired. Accordingly, the Court below by the impugned order rejected the application & directed the Opp. Party to deposit the balance amount within a period of one month from the date of the order & the Petitioner is to execute the Sale Deed in view of the Judgment & decree passed in the suit.

Initially the Petitioner challenging the impugned order has filed C.R.P. No. 32 of 2006, which was disposed of by this Court by Judgment dated 31.8.2007, with an observation that revision is not maintainable in view of provision of Section 115(1) of C.P.C. & accordingly the revision was converted to an application under Article 227 of the Constitution of India. Therefore, the matter is heard again.

Learned Counsel appearing for the Petitioner submitted that time is the essence of the contract & as the Opp. Party has not deposited the balance consideration amount within the stipulated time, the Petitioner moved an application under Section 28(1) of the Act, which should have been allowed by the Court below instead of extending the time. Hence the impugned order need be interfered with.

Learned Counsel appearing for Opp. Party submitted that the Opp. Party has given intimation to the Judgment Debtor to execute the Sale Deed on a particular date & pursuant to the said notice the Opp. Party was present before the office of Sub-Registrar for execution of Sale Deed on payment of the balance consideration amount. However, the Judgment Debtor did not turn up & failed to execute the Sale Deed, therefore, the Decree Holder compelled to open a Pass Book at Rushikulya Gramya Bank, Berhampur & deposited the balance consideration amount to show his bona fide. He further submitted that the Decree Holder is always ready & willing to purchase the suit land & he has not made any default in compliance of the Court''s order. He also submitted that the suit for specific performance of contract was decreed as the Judgment Debtor is a defaulting party & the Court below rightly rejected his application & allowed the Decree Holder to deposit the money in the Court for execution of the Sale Deed. Hence the impugned order need not be interfered with.

Considering the rival submission of the parties & after going through the materials available on record, it appears that the Plaintiff had taken steps to comply the Judgment & decree, however, the Judgment Debtor in spite of complying his part of performance filed the application to rescind the contract. The Decree Holder in order to show his bona fide has deposited the balance consideration amount in Bank to purchase the property. Since the Decree Holder has deposited the balance consideration amount in Bank, the Court below inclined to extend the time & passed the impugned order, rejecting the application of the Petitioner to rescind the contract.

The Apex Court in the case of Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh Vs. Mangilal alias Mangtya, held that the Court does not lose its jurisdiction after grant of decree for specific performance nor it becomes functus officio in view of the provision of Section 28(1) of the Act. The very fact that Section 28 of the Act itself gives power to grant order of rescission of the decree would indicate that till the Sale Deed is executed in execution of the decree, the Trial Court retains its power & jurisdiction to deal with the decree of specific performance. The Court has power to enlarge the time in favour of the Judgment Debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the Judgment Debtor & rejected. The Court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. In view of the aforesaid settled position of law, the Court below has rightly extended the time, which is within its jurisdiction. As there is no error apparent on the face of the record, this Court is not inclined to interfere with the impugned Order Dated 26.6.2006 passed by the Learned Civil Judge (Senior Division). Berhampur in T.S. No. 128 of 1997 in exercise of the jurisdiction under Article 227 of the Constitution of India.

Accordingly, this, Writ Petition is dismissed. The interim Order Dated 31.8.2006 passed by this Court in Misc. Case No. 45 of 2006 stands vacated.