Hakam Singh vs Balkaran Singh and Others

L.N. Mittal, J.

C.M. No. 24924-C-II of 2012 :

Allowed as prayed for.

Main Case :

Judgment-debtor (JD) no. 2 Hakam Singh has invoked the jurisdiction of this Court by filing this revision petition under Article 227 of the Constitution of India assailing order dated 17.09.2012 (Annexure P-2) passed by the Executing Court, thereby dismissing objections preferred by the petitioner in execution proceedings.

Suit filed by Roor Singh - decree-holder (DH) (since deceased and represented by respondents no. 1 to 3 herein as his legal representatives) was decreed by first appellate court for specific performance of the agreement to sell against Major Singh - JD no. 1 (since deceased and represented by proforma respondents no. 4 to 9) and against Hakam Singh - JD no. 2-petitioner. Regular Second Appeal filed by JD no. 2 -petitioner was dismissed by this Court. During pendency of the said appeal, there was interim stay of execution of decree of the first appellate court. After decision of Regular Second Appeal by this Court, DH filed execution petition, wherein JD no. 2-petitioner filed objections alleging that the DH had not deposited the balance sale price within two months of the judgment and decree dated 10.10.2001 passed by the first appellate court, and therefore, in view of Section 28 of the Specific Relief Act, 1963 (in short - the Act), the contract stood rescinded. Death of DH and JD no. 1 was also pleaded as bar to the execution proceedings.

The objections were resisted by the DH.

Learned Executing Court, vide impugned order Annexure P-2, has dismissed the objections preferred by JD no. 2, who has, therefore, filed this revision petition to assail the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that DH and JD no. 1 have since died, and therefore, the impugned decree cannot be executed. It is surprising that such contention has been raised. Such frivolous contention should not have been raised at all. Death of DH or JD no. 1 would not defeat the decree for specific performance of the agreement to sell. The decree can be executed by legal heirs of the DH and it can be executed against legal heirs of the JD.

Counsel for the petitioner next contended that the DH failed to deposit the balance sale price within a period of two months stipulated by the lower appellate court for execution of the sale deed by the vendors, and therefore, contract stood rescinded in view of Section 28 of the Act. Reliance in support of this contention has been placed on judgment of Hon''ble Supreme Court in the case of Chanda (dead) through LRs vs. Rattni and another reported as 2007 (2) RCR (Civil) 534.

I have carefully considered the aforesaid contention, but the same is completely untenable.

In the instant case, the lower appellate court directed the vendors to execute the sale deed within two months. However, the vendors failed to do so. Thereupon, the DH filed the execution petition. There was no direction by the first appellate court or by this Court in Regular Second Appeal to the DH to deposit the balance sale price with the Court within two months or within any other period. In the absence of any such direction or stipulation in the decree, the DH was not supposed to deposit the balance sale price in the trial court within a period of two months, during which vendors had to execute the sale deed. JD no. 2- petitioner wants to take advantage of his own wrong. He failed to execute the sale deed in compliance with decree of the first appellate court, as affirmed by this Court in Regular Second Appeal. The petitioner cannot be permitted to do so. Judgment in the case of Chanda (supra) is not attracted to the facts of the instant case because in that case, DH failed to pay the balance sale price, but in the instant case, the DH has since even deposited the balance sale price vide treasury challan dated 12.01.2010 (Annexure P-1). For the reasons aforesaid, I find that the objections preferred by the petitioner have been rightly dismissed by the Executing Court. Impugned order of the Executing Court does not suffer from any perversity, illegality or jurisdictional error so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is completely devoid of any merit and is accordingly dismissed in limine.