Gurdit Singh vs Jagjit Singh

I.S. Tiwana, J.—The Petitioner makes a grouse of the dismissal of his application u/s 28 of the Specific Relief Act, 1963 (hereinafter referred to as the Act). In order to resolve the controversy raised in this petition the following facts deserve to be noticed.

On December 19, 1974, a decree was passed against the Petitioner by the Senior Sub Judge, Jullundur, directing him to specifically perform the agreement contained in the receipt exhibited as P. 15 in that suit. The operative part of the decree concededly reads as follows:

As a result,I pass a decree for specific performance of the agreement of sale as per receipt Ex. P 15 of H. No. 407, Rainbow Road, Jalandhar City on payment of balance price of Rs. 30,000/-in favour of the Plaintiff and against the Defendant. The Defendant to get the sale deed registered by 30.1.1975 and to do all the acts to put the Plaintiff in possession of the property and to pay the costs of the suit. The other relief claimed by the Plaintiff is disallowed.

It is maintained by the Petitioner that since he was directed to execute the sale deed by January 30, 1975, he requested the Plaintiff-Respondent a number of times to pay him the balance amount of Rs. 30,000/- and to get the sale deed registered in terms of the above noted decree, but the later always got on avoiding to perform his part of the contract. He further claims that on January 30,1975, he even went to the office of the Sub Registrar and submitted an application to him showing that he had come to that office with a view to get the sale deed registered but the said application was returned to him with the remarks that "he should seek a proper remedy before the proper Court". It is then his pleaded case that since the Respondent decree-holder failed to carry out his part of the decree, he ''per force'' had to file on appeal (R. F. A. No. 118 of 1975) in this Court on March 4, 1977 assailing the decree but the said appeal was dismissed on August 25, 1983, affirming the decree of the trial Court.

On October 11, 1983, the Respondent decree-holder filed an application for the execution of the decree passed in his favour by the trial Court on December 19, 1974 and as affirmed by this Court on August 25, 1983. On November 17, 1983. the Court directed the Respondent decree-holder to deposit Rs. 35,625/-. i. e., Rs. 30,000/- as balance of the sale consideration and Rs. 5,625/- by way of stamp and registration charges, etc This amount was admittedly deposited by the Respondent on the very next day, i, e., November 18, 1983. It is only on November 19, 1983, that the present application u/s 28 of the Act was filed by the Petitioner with the assertion that the Respondent decree-holder had failed to perform his part of the contract in as much as he never deposited the balance sale consideration i. e., Rs. 30,000/- within one month from the date of passing of the decree by the trial Court on December 19, 1974 and in view of that the contract of sale be rescinded, meaning thereby that the decree in question be nullified. This application, as already indicated in the opening part of this judgment, has been dismissed by the lower Court.

It is now being contended rather seriously by Mr. G. S. Sachdev, learned Counsel for the Petitioner that firstly the trial Court could not dismiss his application casually without permitting the parties to lead evidence in support of their respective pleas and recording findings thereupon, and secondly, in the light of the above noted facts it is established beyond any doubt that the Respondent decree-holder had failed to perform his part of the contract as he did not deposit the balance of the sale consideration, i. e., Rs. 30,000/- and also the requisite stamp and registration charges within the prescribed period of thirty days from the date of the passing of the decree in his favour, i. e., December 19, 1974. Having given my thoughtful consideration to the entire matter in the light of the submission of the learned Counsel for the parties, I, however, find no merit in this petition.

It is not disputed before me that the only ground on which the Court can make an order rescinding the agreement of sale u/s 28 of the Act is that the purchaser had committed default in paying the purchase money or such other sum as directed within the time allowed under the decree. If that is so, as it is, then it is patent in the instant case that the trial Court which decreed the suit of the Respondent on December 19, 1974, did not fix any time within which the Respondent decree-holder was required to deposit the balance of the sale consideration, i. e,, Rs. 30,000/- and the other stamp and registration charges, etc. Similarly this Court, while dismissing the Petitioner''s appeal, did not choose to specify the time or date by which the Respondent decree-holder was to deposit or to pay the balance of the sale consideration, i. e.. Rs. 30,000/- or any other sum. It is not the case of the Petitioner that before the filing of the appeal (R. F. A. No. 118 of 1975) in this Court, he had issued any notice specifying the date for the performance of the agreement in question or compliance of the decree as such. Rather the very fact that he preferred an appeal against the decree of the trial Court is indicative of his state of mind that he did not accept the decree and thus there was no question of his being willing to perform his part of the agreement or to comply with that decree. Not only he preferred this appeal, but also made a move and actually obtained an order from this Court on March 5, 1975 staying the operation of the said decree. This order remained in force till the final disposal of this appeal. It is thus patent that the decree in question remained sub judice in this Court from March 4, 1975 to August 25,1983. It was only after the dismissal of this appeal that the Respondent decree-holder filed the execution application on October 11, 1983 and in the light of the direction of the Court dated November 17, 1983, for the deposit of Rs. 35,625/- referred to above, deposited the said amount the very next day, i. e., on November 18, 1983. It is not the case of the Petitioner even remotely that after the dismissal of the appeal by this Court on August 25. 1983, he ever disclosed his intention to carry out or comply with the decree in any manner. I, therefore, find no reasons to disagree with the conclusion of the lower Court that this application "has been filed just to delay the final execution of the decree" passed as a result of the proceedings which were initiated as long back as the year 1971.

During the course of arguments the learned Counsel for the Petitioner at one stage sought to rely on certain observations made by this Court in Onkar Nath and Anr. v. Basheer (1985) 88 P. L. R. 432, but having perused the judgment I find that the facts in that case were materially different from those of the case in hand. That was a case where the learned Single Judge had come to the conclusion on the basis of the material on record that the Plaintiff-Respondent (decree-holder) had failed to comply with the decree within the stipulated period. In the instant caae, as already pointed out above, the trial Court never fixed the time within which the decree-holder was to deposit the purchase money or any other sum before the execution of the sale deed by the judgment debtor. As per the phraseology of the section, a purchaser can only be deprived of the fruits of the decree passed in a suit for specific performance of a contract for the sale of immoveable property if he "does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase money or other sum which the Court has ordered him to pay."

Above all this the default alleged to have been committed by the Respondent decree-holder subsequent to the passing of the decree by the trial Court on December 19, 1974 and prior to the disposal of the Petitioner''s appeal by this Court on August 25, 1983, appears to be totally irrelevant in view of the settled principle of law that where a decree is appealed against, the only executable decree would be that of the Appellate Court, may it be a decree of reversal or affirmance. The final Court in Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., , after an exhaustive analysis of the earlier case law has, in this regard, firmly ruled as follows:

When an appeal is made, the appellate authority can do one of three things, namely,

(i) it may reverse the order under appeal,

(ii) it may modify that order, and

(iii) it may merely dismiss the appeal and thus confirm the order without any modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification....

The principle viz., that the appellate order is the operative order alter the appeal is disposed of is the basis of the rule that the decree of the lower Court merges in the decree of the appellate court. On the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation.

As has already been pointed out above, subsequent to the dismissal of his appeal, the Petitioner neither ever disclosed his willingness to perform his part of the contract nor has he alleged anything in this regard in the application filed by him. In such a situation, to my mind a decree-holder is only supposed to deposit the balance amount of the sale consideration or to perform his part of the agreement within a reasonable time of the passing of the decree in his favour. The Respondent did the same on November 18, 1983 when he deposited Rs. 35,6,25/- in compliance with the direction of the Court dated November 17. 1983. The power u/s 28 of the Act is undoubtedly discretionary and the Court cannot on firms grounds annul the decree once passed by it. A clear case of default has to be established against the decree holder for rescinding a contract or to nullify the decree of specific performance.

The submission of the learned Counsel for the Petitioner that the application has been dismissed by the lower Court in a casual manner, has no weight in view of the fact that the impugned order running into four typed pages has been founded on facts available on the records of the case.

In the light of the discussion above, this petition fails and is dismissed with costs which I determine at Rs. 500/-.