Gurbachan Singh vs Bachan Singh and Others

R.L. Anand, J.—This Regular Second Appeal has been directed against the judgment and decree dated 5.9.1981 passed by the Court of Shri O.P. Gupta, Additional District Judge, Kurukshetra, who affirmed the judgment and decree dated 22.9.1980 passed by the Court of Shri B.M. Bajaj, Sub Judge 1st Class, Kaithal and dismissed the appeal of the plaintiff appellant Gurbachan Singh.

The brief facts of the case are that Jai Singh, defendant No. 2 in the trial Court filed a suit for possession by way of specific performance against defendant No. 1 Bachan Singh alias Gurbachan Singh son of Ghasita Singh and his suit was decreed on 3.12.1970 vide Ex. D.6 and it was ordered by the trial Court that plaintiff-decree holder should deposit a sum of Rs. 1100/- on or before 7.1.1971. The plaintiff should also pay stamp and bear the registration charges. In case, the defendant still fails to get the sale deed executed, the plaintiff shall be entitled to get it executed through the Court of law.

Jai Singh decree-holder i.e. defendant No. 2 could not pay the amount on or before 7.1.1971. Rather he submitted an application dated 9.3.1971 Ex. D.3 for extension of time for the deposit of Rs. 1100/- and vide order dated 13.9.1971 Ex. D.2, the Sub Judge II Class, Kaithal allowed the application and allowed Jai Singh to deposit the amount on or before 19.11.1973 in terms of the decree dated 3.12.1970. This amount was to be deposited on or before 19.11.1973 but was actually deposited on 19.10.1973 and sale deed dated 15.7.1976 was executed in favour of defendant No. 2 through local commissioner on behalf of defendant No. 1. Meanwhile Bachan Singh son of Ghasita Singh, defendant No. 1 sold the property subject-matter of the suit for specific performance to the present appellant Gur Bachan Singh son of Mehar Singh vide registered sale deed dated 13.2.1971 for a sum of Rs. 2,000/-. Gur Bachan Singh then filed a suit for permanent, injunction against Bachan Singh and Jai Singh which was decreed on 7.8.1975 vide Ex. D.4 and the operative part of the decree is as below: -

"In view of my findings on the above issues, the plaintiff who is in possession of the land has to be protected against forcible dispossession. The suit of the plaintiff succeeds against the defendants and it is hereby decreed with the condition that the defendant No. 2 shall be free to obtain the possession of the disputed land with the help of the order of any competent court or officer. In the circumstances of the case the parties are left to bear their own costs."

Gurbachan Singh brought the present suit for declaration on 18.4.1978 that he was the sole owner in possession of the land in dispute and that the impugned decree for specific performance was null and void and therefore, not binding upon him alleging that He was owner and in possession of the agricultural land in suit as he had purchased the same for a sum of Rs. 2,000/- from defendant No. 1 vide registered sale deed dated 13.2.1971 and had taken possession of the same on 3.6.1973 as per report of roznamcha No. 383. It was further alleged that defendant No. 2 in collusion with defendant No. 1 filed a suit for specific performance on the basis of fictitious agreement and obtained by defendant No. 2 against defendant No. 1 had become infructuous because defendant No. 2 did not deposit or paid the amount to his alleged vendor up to 7.1.1971 and this omission had created a clog on the rights of the plaintiff.

The suit of plaintiff Gur Bachan Singh son of Mehar Singh was contested by defendant No. 2 Jai Singh who supported the decree for specific performance and also the order of the Court for extending time for the deposit of the amount.

On the pleadings of the parties, the trial Court framed the following issues:-

1) Whether the plaintiff had purchased the suit land for Rs. 2,000/- as alleged in para No. 2 of the plaint? OPP

2) Whether defendant No. 2 in collusion with defendant No. 1 filed a suit for specific performance as alleged in para No. 3 of the plaint? Is so, its effect? OPP

3) Whether the plaintiff is the owner in possession of agricultural land detailed in para No. 1 of the plaint? OPP

4) Whether the suit of the plaintiff is time barred? OPD

5) Whether the suit of the plaintiff does not lie in the present form? OPD

6) Whether the defendants are entitled to special costs? If so, to what amount? OPD

7) Relief.

The parties led evidence in support of their case and ultimately the trial Court dismissed the suit of the plaintiff-appellant. Aggrieved by the judgment and decree of the trial Court, the plaintiff-appellant filed appeal before the Additional District Judge, Kurukshetra who vide impugned judgment and decree dated 5.9.1981 dismissed the appeal mainly on the ground that nothing was mentioned in the decree for specific performance as to what would happen to the decree if the amount was not deposited in time. The Court relied upon a authority reported as Smt. Sarupi and Ors. v. Har Gian and Ors. (1974)76 PLR 758 and stated that the decree of specific performance did not become ineffective automatically with the non-deposit of the balance consideration as contended by the present appellant and consequently the appeal was also dismissed. Aggrieved by the decision of the first Appellate Court, the present Regular Second Appeal by Gur Bachan Singh son of Mehar Singh and in my considered view the present appeal is also devoid of any merit for the reasons set forth in the subsequent portion of the judgment by which I would like to meet the contentions raised by the learned counsel for the appellant Shri Hemant Kumar and these contentions were refuted by Shri Adarsh Jain, advocate, on behalf of the respondent.

Assailing the findings of the Courts below it was argued at the first instance by Shri Hemant Kumar that on 13.2.1971 there were no lis pending between defendants No. 1 and 2. The decree holder of the suit for specific performance was supposed to deposit the balance consideration up to 7.1.1971 but he did not do so. Rather he moved the application u/s 148 C.P.C. on 9.3.1971 which was allowed on 13.9.1971. Therefore, the suit of the plaintiff-appellant should be decreed. The second argument of Shri Hemant Kumar, advocate was that the orders dated 13.9.1971 could not be passed as time was made the essence by the trial Court when it allowed the time to the decree holder to deposit or pay the balance consideration up to 7.1.1971. The third submission raised by the learned counsel was that in the proceedings u/s 148 of the CPC his client was not heard who purchased the property by virtue of registered sale deed and it is a sufficient notice to the entire public under the provisions of Registration Act. On the contrary the judgments and decree of the Court''s below have been supported by the learned counsel appearing on behalf of the respondent and he has adopted the reasons which were advanced by the Courts below in dismissing the suit and rejecting the appeal.

A glance to the decree 3.12.1970 Ex. D.6 would show that it was not a conditional decree. The suit for specific performance was decreed subject to payment of Rs. 1100/- to be paid by the plaintiff on or before 7.1.1971. The Court never mentioned in the decree that in case the plaintiff does not deposit the amount on or before the stipulated date i.e. 7.1.1971 his suit shall stand automatically dismissed. I do not agree with the submission of Mr. Hemant Kumar that with the non-deposit of the balance consideration up to 7.1.1971 the decree dated 3.12.1970 would become non-executable. I also do not subscribe to the view that the time was made the essence of the contract up to 7.1.1971. The present plaintiff appellant has stepped into the shoes of the judgment debtor who was supposed to give notice to the present appellant. It is an admitted fact that the proceedings u/s 148 of the CPC were contested. Notice was given to the judgment debtor who sold the property to the contesting respondent. The order dated 13.9.1973 has been passed under the CPC and not under the provisions of Specific Relief Act because there is no such provision in that Act that consequent upon decreeing of a suit by way of specific performance the decree holder was required to deposit the amount by a particular date failing which his suit would be deemed to have been dismissed. A bare reading to the provisions of section 148 of the CPC clearly shows that where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Court, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.

The order dated 13.9.1973 by which the contesting respondent was allowed to deposit the balance consideration would give him a right to execute his decree dated 3.12.1970. The decree for specific performance dated 3.12.1970 would not lapse automatically on failure to pay the balance consideration in time, rather it gives a right to the vendor to apply for rescission of the contract u/s 28(1) of the Specific Relief Act which has not been dome by defendant No. 1 or by the present appellant who stepped into the shoes of his vendor and in this regard the learned counsel for the respondent has drawn my attention to a citation of this Court reported as (1974)76 PLR 758, Smt. Sarupi and others v. Har Gian and others, . It was held therein that:

"When a decree is silent as to what is to happen if the purchase money is not paid within the time fixed, the decree will not lapse automatically on the plaintiffs failure to pay within the prescribed time. The default will, however, entitle the vendor to apply for rescission of the contractunder section 28(1). But so long as the vendor does not apply for such relief the decree subsists and the decree holder can still execute it within the period of limitation by depositing the purchase money within the time allowed or extended. If, however, the decree directs that in the event of default of deposit within the time fixed the suit shall stand dismissed, the court would be incompetent to extend the time. In such a case it will be deemed that the court has also, in substance, passed an order of rescission of contract as contemplated by the concluding portion of Section 28(1) of the Specific Relief Act."

Again the perusal of the decree dated 3.12.1970 would" show that it was not mentioned by the trial Court Judge the consequence in case the decree holder fails to deposit the amount of Rs. 1100/- on or before 7.1.1971. In other words, the decree would survive and remain executable and would not automatically become redundant till it is got rescinded u/s 28(1) of the Specific Relief Act. Reliance was also placed by the learned counsel for the respondent on Someshwar Dayal and Others Vs. Widow of Lalman Shah and Others, .

Learned counsel Shri Hemant Kumar has tried to distinguish these authorities by raising an argument that the interest of the intervener i.e. the plaintiff had come with the sale deed dated 13.2.1971 but as I have stated above, the present plaintiff will be bound by the decree dated 3.12.1970 as he has stepped into the shoes of the judgment debtor who gave a contest to the proceedings u/s 148 C.P.C. The counsel Shri Hemant Kumar also relied upon 1989(3) Judgments Today 382, Johri Singh v. Sukh Lal Singh and Ors. (1984) 86 PLR 591 Parmeshwari v. Naurata,. But these authorities are not helpful because in the cited cases the decrees were conditional. In the decree dated 3.12.1970 no consequential stipulation was incorporated by the trial Court and the order dated 13.9.1973 was never given '' challenge by the judgment debtor.

Resultantly, this Court is of the considered view that this appeal is devoid of any merit and the same is hereby dismissed with no order as to costs.