Irappa Meenappa Allichandi vs Nagayya Gurubasayya Hiremath and Ghanteppa Jannappa Nidagundi

A.S. Bopanna, J.—The petitioner is before this Court assailing the order dated 07.07.2012 passed in E.P. No. 31/2007 impugned at Annexure-G to the petitions. By the said order, the Executing Court has dismissed the execution petition in E.P. No. 31/2007 as not maintainable. The said conclusion has been reached in view of dismissal of the application in I.A. Nos. 1 and 2. The undisputed fact is that the petitioner herein had filed a suit in O.S. No. 19/1996 seeking for specific performance of the contract against the respondent herein. The suit was decreed by the judgment and decree dated 02.01.1997. The direction was that the plaintiff shall pay the balance sale consideration of Rs. 70,000/- and the defendants were required to execute the sale deed. The plaintiff in order to secure execution of the said decree has instituted the execution proceedings in E.P. No. 31/2007.

The fact that the execution has been levied within the period of twelve years as provided under Article 136 of the Limitation Act, 1963 is not in dispute. The only question which arises for consideration is whether the notice said to have been issued by the defendants, that is the respondents herein rescinding from the requirement of executing the sale deed could be taken as a consideration as has been presently done by the Executing Court wherein it has come to a conclusion that the application filed by the decree holder is not liable to be allowed and the execution being rejected.

To consider this aspect of the matter, it is appropriate to take note of the provision contained u/s 28 of the Specific Relief Act. A perusal of the same would indicate that a vendor or a lessor would be entitled to apply to the same Court which passed the decree, if the plaintiff i.e., the purchaser in the suit does not comply with the condition imposed in the judgment and decree to pay the sale consideration within the time provided. While taking note of the same, at the outset it is necessary to refer to the decisions of the Hon''ble Supreme Court relied on by the learned counsel for the respondents in the case of Chanda (dead) through LRs. Vs. Rattni and Another, and in the case of Pankoj Kumar Bhattacharjee Vs. Manmatha Nath Vidyabhushan Bhattacharjee, to contend that rescission is permissible.

Having perused the said judgment, at the outset, it is seen that in the said decisions, the factual matrix of the matter is that the Court passing the decree had fixed the time frame. In the instant case, the judgment and decree which is available at Annexure-A to the petitions would disclose that except for directing the plaintiff to pay the sum of Rs. 70,000/- which was the balance sale consideration, the time frame has not been fixed. Notwithstanding the same, the appropriate course that was available to the vendor is what is necessary to be taken into consideration.

In that direction, the Executing Court in fact has referred to a legal notice dated 28.06.2001 which had been got issued by the defendants to the suit, that is the JDRs, calling upon the plaintiff to pay the balance sale consideration as ordered by the Court below and secure execution. The Executing Court in fact has accepted the said notice as valid for the purpose of rescission of the contract.

In that light, having already perused the provisions contained in Section 28 of the Specific Relief Act, the same does not indicate that mere issue of notice would be sufficient. The provision enables the vendor to file an application in the same suit bringing to the notice of the Executing Court the non-deposit of the amount and seek to rescind the contract. In the instant case, the judgment debtors have not made such application in the suit, but for the first time have taken the defense in the execution proceedings by relying on the notice said to have been issued. Therefore, that in itself would not be sufficient for taking benefit of the provision contained in Section 28 of the Act. Accordingly, the order dated 07.07.2012 passed by the Executing Court would not be justified and the same is set aside. The Court below is directed to restore the execution petition in E.P. No. 31/12007 to file and thereafter consider I.A. Nos. 1 and 2 on its merits and proceed further in the matter. The parties shall now appear before the Executing Court without further notice on 02.04.2014

In terms of the above, these writ petitions stand allowed.