Maalti Mulasi vs Ram Dayal Joshi & Others

MANOJ K. TIWARI, J. (ORAL)

By means of this petition under Article 227 of the Constitution of India, following relief has been sought:

“(i) Issue a writ, order or direction in the nature of calling of the record of the case and quashing order dated 28.01.2015 passed by learned

Additional District Judge, VI, Dehradun in Civil Revision NO. 10/2012 Ram Dayal Joshi Vs. Maalti Mulasi and others and further to decide the

execution case pending before learned Civil Jude (S.D.), Dehradun within one monthâ€​

The short question, which falls for consideration in this petition, is whether a decree for specific performance can be rescinded after deposit of sale

consideration by the Decree Holder, in the Executing Court.

3.A suit for specific performance was filed by Late Shri Mohan Chandra Mulasi against Shri Ram Dayal in the Court of Civil Judge, Dehradun, which

was registered as Original Suit No. 409 of 1988. In the said suit, it was contended that Ram Dayal had executed a registered agreement to sell on

24.06.1985, in favour of the plaintiff in respect of his land situate in Village Adhoiwala, Pargana-Parwa Doon, District Dehradun.

Defendant entered appearance and filed written statement before learned trial court but thereafter he did not participate in proceedings of the suit,

consequently, the suit was decreed ex-parte against him by learned trial court vide judgment and order dated 28.06.1995.

By the said judgment, defendant was directed to execute sale deed in favour of the plaintiff within three months, after taking balance sale

consideration and permission from the Ceiling Authorities, failing which, plaintiff shall be entitled to get the sale deed executed through Court, after

taking permission from the Ceiling Authorities and depositing balance sale consideration in Court.

Since plaintiff passed away soon after the suit was decreed, therefore, his legal representatives (widow and 3 children) filed execution application

for executing the ex-parte decree, on 30.03.2001, which was registered as Execution Case No. 2/2001.

The defendant moved an application under Order 9 Rule 13 C.P.C., for setting aside ex-parte decree, which was rejected by learned trial court. On

24.02.2006, the Decree Holder moved an application before Executing Court stating that he is filing certified copy of the order dated 12.06.1995

passed by Ceiling Authorities, which shows that the land of Judgment Debtor is free from Ceiling. By the said application, the decree holder sought 15

days’ time to deposit remaining amount of sale consideration.

Since, no order was passed on the application dated 24.02.2006, therefore, the Decree Holder moved another application on 06.03.2006, wherein

the following prayer was made: “It is, therefore, respectfully prayed that tender for depositing the remaining sale consideration of Rs. 20,000/-

(Twenty Thousand) be approved.â€​ According to the petitioner, no order was passed on this application.

Subsequently, on 21.04.2011, learned Executing Court passed an order directing the Decree Holder to obtain permission from Ceiling Authorities

and also deposit the balance sale consideration in Court. The Decree Holder deposited balance sale consideration of Rs.20,000/- on 13.05.2011 in

Court pursuant to the said order dated 21.04.2011.

Thereafter, as many as six dates were fixed and ultimately on 22.10.2011, Executing Court again passed an order directing the Decree Holder to

deposit the balance sale consideration, through tender, along with draft sale deed in the Court.

Learned Counsel for the petitioner submits that pursuant to the order dated 22.10.2011, petitioner submitted draft sale deed also before Executing

Court. On 21.01.2012, the Judgment Debtor filed a revision before learned District Judge, Dehradun, which was registered as Civil Revision No. 10 of

2012. By the said revision, challenge was thrown to the order dated 22.10.2011 alone, passed by the Executing Court. The revisional court allowed the

revision on the ground that learned Executing Court has not considered import of Section 28 of Specific Relief Act, while passing the order dated

22.10.2011, therefore, the matter was remanded back to the Executing Court to reconsider the matter. Accordingly, the order dated 22.10.2011 was

set aside and the matter was remitted back to the Executing Court for reconsideration.

The Decree Holder has challenged the judgment and order passed by Revisional Court, mainly on the ground that once the direction given by the

Executing Court to deposit the decretal amount has been complied with by the Decree Holder, then the application for rescission of the decree, filed

by Judgment Debtor cannot be allowed. According to learned counsel for the petitioner, the power of enlargement of time for depositing balance sale

consideration and power to rescind the decree are conferred by Section 28 (1) of the Specific Relief Act. He further submits that the order dated

21.04.2011 passed by Executing Court directing the Decree Holder to deposit the balance amount is an order for enlargement of time as contemplated

under Section 28 (1) of the Act and once the time has been enlarged in exercise of the said power, then the Executing Court cannot go back for

exercising the power of rescission conferred under Section 28(1) of the Act.

Per contra, Shri Neeraj Garg, learned counsel appearing for the Judgment Debtor (respondent herein) submits that there is no order by the

Executing Court, granting extension of time to the Decree Holder for depositing the balance amount of sale consideration. He further submits that

decree was passed by learned trial court on 28.06.1995, while the application for executing the decree was filed in the year 2001 and the application

seeking enlargement of time for depositing the balance sale consideration was moved by the Decree Holder on 24.02.2006, on which no order has

been passed.

Upon perusal of the judgment passed by learned Revisional Court, it is apparent that the revision was decided by 4th Additional District Judge,

Dehradun in ignorance of two very relevant facts, namely, (i) the order passed by Executing Court on 21.04.2011, whereby Decree Holder was

directed to deposit the balance amount and (ii) deposit of the balance sale consideration by the Decree Holder on 13.05.2011.

Since the revisional court could not consider the aforesaid aspects while deciding the revision filed by the Judgment Debtor, therefore the

impugned judgment is set aside and the matter is remitted back to the revisional court to consider and decide the revision afresh, keeping in view the

aforesaid aspects also. It shall be open to the parties to raise all legal contentions before the Court below.

With above observation and directions, writ petition stands allowed.

Pending application, if any, stands disposed of.