Mangilal Soni vs Suresh Chandra Swarnkar

The instant revision petition has been filed against the order dated 17.09.2019 passed by the Additional District Judge No.1, Udaipur in case no.

5/2007 (Suresh Chand v/s Mangilal Soni), whereby the application filed by the petitioner- defendant under Section 28 of the Specific Relief Act, 1963

for rescinding the contract, was rejected.

Brief facts giving rise to this revision petition are that a suit for specific performance of the contract came to be filed by the respondent-decree

holder which was registered as original Suit No.26/85 and the same was decreed by the trial Court vide its judgment and decree dated 03.04.1987 with

a direction to the respondent-decree holder to make payment of remaining amount to petitioner-defendant of Rs.50,000/- within two months,

whereupon the petitioner-defendant shall execute the sale deed in favour of respondent-plaintiff. On failure of defendant to do so, the plaintiff would

deposit the amount in the Court of ADJ, Udaipur and get the sale deed executed through the Court. Being aggrieved against the judgment and decree

dated 03.04.1987, the petitioner-defendant preferred an appeal before this Court bearing S.B. Civil First Appeal No. 42/1987, wherein initially an

interim order was passed by this Court but subsequently, the said first appeal came to be dismissed on 12.02.2007.

The respondent-plaintiff, thereafter, filed an application under Order 21 Rule 34 and 32 read with Section 151 CPC before the trial Court on

02.07.2007 seeking execution of the sale deed and mentioning therein that the remaining sale amount of Rs.50,000/- is being deposited through the

challan, therefore, necessary permission may be granted to deposit the said amount. The trial Court on 03.07.2007, ordered for depositing of the sale

amount of Rs.50,000/-. Thereafter, on 04.07.2007, the sale amount of Rs.50,000/- was deposited by the respondent-plaintiff in the Court. On

22.11.2008, the petitioner-defendant filed reply to the application preferred by the respondent-plaintiff under Order 21 Rule 34 CPC denying the

averments made in the said application. It was further averred that the remaining sale amount was not deposited by the respondent-plaintiff as per the

direction given by the trial Court vide judgment and decree dated 03.04.1987. Thus, the respondent-plaintiff is not entitled to deposit the said amount.

Even, if, the said amount has been deposited in the Court, the same is not in pursuance of the direction given by the trial Court vide its decree dated

03.04.1987. Hence, the respondent-plaintiff is not entitled to get the decree executed and prayer was made to dismiss the application under Order 21

Rule 34 CPC.

Thereafter, respondent-decree holder filed an application before the trial Court on 01.12.2008 with a prayer that the sale amount deposited in the

Court on 04.07.2007 be treated within the time limit which was deposited after obtaining permission from the Court vide its order dated 03.07.2007.

Reply to the said application dated 01.12.2008 was submitted by the petitioner- judgment debtor. Thereafter, on 28.01.2013 another application under

Order 7 Rule 11 CPC and Section 28 of the Specific Relief Act was filed by the petitioner-judgment debtor for rescinding the contract.

It is borne out from the perusal of the record that the Court below deemed it proper to take evidence of parties for deciding the issue/dispute

between the parties on 04.02.2009. Thereafter, on 25.02.2015, the Court below recalled the order dated 04.02.2009, whereby, evidence of both the

parties was ordered to be recorded. After hearing both the parties, the Court below dismissed the application filed by the petitioner under Order 7 Rule

11 CPC and Section 28 of the Specific Relief Act and the application dated 01.12.2008 submitted by the respondent-decree holder was allowed and it

was held that the sale amount deposited by the respondent-decree holder was deposited with the permission of the Court which tantamount to

extension of time by the Court. The application filed by the respondent-decree holder under Order 21 Rule 34 CPC was also allowed and the

petitioner- judgment debtor was directed to execute the sale deed of the disputed property. Feeling aggrieved, the instant revision petition has been

filed by the petitioner-defendant challenging the impugned order dated 17.09.2019.

Learned counsel for the petitioner-defendant submits that the impugned order dated 17.09.2019 is against the law and facts on record which is liable

to be quashed. It was further submitted that while passing the order 03.07.2007, the Court below without application of mind ordered for depositing of

the sale amount of Rs.50,000/- which was an administrative order. The trial Court has not considered that as to whether the amount deposited by the

respondent-plaintiff was within the time as directed by the trial Court while passing judgment and decree dated 03.04.1987. The Court has also not

considered that the respondent-decree holder has not made any prayer for extension of time nor the Court extended the time for depositing the said

amount in pursuance of the decree dated 03.04.1987. Hence, the order dated 03.07.2007 cannot be construed as an order extending the time for

depositing the amount nor the amount deposited by the respondent-decree holder is valid in pursuance of the decree dated 03.04.1987. It was further

submitted that the respondent-decree holder has stated that he served the notice upon the petitioner-defendant but he neither received the payment nor

executed the sale deed. He submitted that there was no need to serve notice upon the petitioner-judgment debtor as in the decree itself it was directed

that in case of non-execution of the sale deed by the petitioner- judgment debtor, the respondent-decree holder would be entitled to get the sale deed

executed through the Court. Thus, the respondent-decree holder could have deposited the sale amount directly in the Court. It was further submitted

that the trial Court considered the evidence recorded in pursuance of the order dated 04.02.2009 which was later on recalled by the order dated

25.02.2015. It was further submitted that it was the duty of the respondent-decree holder to have deposited the sale amount within the time as

prescribed by the judgment and decree dated 03.04.1987 but the same was not deposited and neither the extension of time was sought before

depositing the amount and nor the Court extended the time. Hence, the application filed by the petitioner-judgment debtor for rescinding the contract

under Section 28 of the Specific Relief Act was not considered by the trial Court in right perspective. It was also urged that the application under

Section 28 of the Specific Relief Act can be filed at any stage and the Court can refuse to execute the sale deed when non-compliance of judgment

and decree, comes to the notice of the Court. Learned counsel for the petitioner submitted the following judgments:

V.S. Palanichamy Chettiar Firm Vs. C. Alagappan & Anr. Reported in 1999 4 SCC 702;

Bhupinder Kumar Vs. Angrej Singh reported in 2009 8 SCC 766;

Prem Jeevan Vs. K.S. Venkata Raman and others reported in 2017 11 SCC 57;

Bakhtawar Singh Vs. Mst. Inder Kaur reported in [2014] 0 AIR (Raj) 110;

Rajinder Kumar Vs. Shri Kuldeep Singh & Others reported in 2014 15 SCC 529;

P.R. Yelumalai Vs. N.M. Ravi reported in 2015 9 SCC 52.

Per contra, learned counsel for the respondent-decree holder while supporting the impugned order vehemently urged that after the decree passed

on 03.04.1987, the respondent-decree holder served notice upon the petitioner-judgment debtor to receive the amount and to execute the decree dated

03.04.1987 but petitioner-judgment debtor did not pay any heed to it and thereafter the petitioner-judgment debtor filed civil first appeal before this

Court in which stay order was granted and the appeal was decided/dismissed on 12.02.2007. The petitioner-judgment debtor also filed appeal before

the Hon'ble Supreme Court which came to be decided on 14.09.2007 but before that date, the sale amount of Rs.50,000/- was already deposited in the

Court on 04.07.2007 in compliance of the order dated 03.07.2007. He urged that the appeal is continuation of the suit and the matter was finally

decided with/when the appeal before the Hon'ble Supreme Court was decided. Hence, there was no delay of depositing the sale amount in the Court.

He further submitted that though the prayer was made in the application under Order 21 Rule 34 CPC for extension of time for depositing the amount,

no formal application is required to made for extension of time. The Court has discretion to extend the time and delay of each and every day which is

not required to be explained. He further submitted that the petitioner-judgment debtor though submitted reply to the application submitted by the

respondent-decree holder under order 21 Rule 34 CPC dated 02.07.2007 and application dated 01.12.2008 but he never indicated that the contract has

been rescinded by the petitioner-judgment debtor. The petitioner-judgment debtor filed an application only on 28.01.2013 for rescinding of the contract

under Section 28 of the Specific Relief Act much after the valid deposit of the sale amount by the respondent-decree holder in the Court. He further

submitted that the right of the respondent-decree holder to get the sale deed executed of disputed property cannot denied on technical ground. He

implored the Court to reject the revision petition.

Heard and considered the rival contention of the parties and perused the law cited at the bar.

A perusal of the material placed on record goes to show that on 03.04.1987, Additional District Judge No.1, Udaipur passed the decree in the

following terms;

‘‘

-

â€​

Aggrieved against the judgment and decree dated 03.04.1987, the petitioner-judgment debtor filed appeal before this Court bearing S.B. Civil First

appeal No. 42/87 which was dismissed vide judgment dated 12.02.2007. On 02.07.2007, the respondent-decree holder filed an application under Order

21 Rule 34 CPC. Para 04 of the application reads as under:-

50,000/-

,

,

â€​

On 03.07.2007, the trial Court passed the following order:

. 50,000/-

. 21 34 00

0 14.08.2007 â€​

Pursuant to the order dated 03.07.2007 passed by the trial Court, the respondent-decree holder deposited the said amount on 04.07.2007

Thereafter, on 01.12.2008, the respondent-decree holder submitted another application praying therein that the amount deposited in the Court may be

treated within time with the permission of the Court. Thereafter, on 28.01.2013, an application under Order 7 Rule 11 CPC and under Section 28 of

the Specific Relief Act were submitted by the petitioner-judgment debtor. Now, the question arises for consideration before this Court is as to whether

the amount deposited by the respondent- decree holder in the Court on 04.07.2007 was a valid deposit in compliance of the judgment and decree dated

03.04.1987.

In Sardar Mohan Singh Vs. Mangilal @ Mangtya reported in 1997 (9) SCC 217, the Apex Court in para 4 observed as under:

From the language of Sub-section (1) of Section 28, it could be seen that the Court does not lose its jurisdiction after the grant of the decree for

specific performance nor it becomes functus officio. The very fact that Section 28 itself gives power to grant order of rescission of the decree would

indicate that till the sale deed is executed in execution of the decree, the trial Court retains its power and jurisdiction to deal with the decree of specific

performance. It would also be clear that the Court has power to enlarge the time in favour of the judgment-debtor to pay the amount or to perform the

conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment-

debtor and rejected. In other words, the Court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree

for specific performance. It is true that the respondent has not given satisfactory explanation of every day's delay. It is not, unlike Section 5 of the

Limitation Act, an application for condonation of delay. It is one for, extension of time. Under these circumstances, the executing Court as well as the

High Court had exercised discretion and extended the time to comply with the conditional decree. Accordingly, we do not find any valid and justifiable

reason to interfere with the order passed by the High Court confirming the order of the executing Court when in particular, the High Court has further

enhanced a sum of Rs. 16,000/- to compensate the petitioner for loss of enjoyment of the money. The said amount is given to the respondent in a sum

of Rs. 16,000/-, rightly for the reason that parties contracted for non- performance of the contract. They quantified the damages at Rs. 2,000/- for 8

years. The Court has given Rs. 16,000/- obviously in terms of the contract.

The Apex Court in the case of Chithambaran Ponnappan Vs. Viswambaran and anr. reported in AIR 2001 Kerala 205 held that mere failure on

the part of the decree holder to deposit amount does not render the decree ineffective or release the judgment-debtor his liability to satisfy the decree.

It is only when there is willful default on the part of the decree holder to make the deposit that the Court would be justified in refusing the extension of

time. There exists power on the part of the execution Court to extend the time even without the application is clear.

In the case of Md. Alimuddin Vs. Waizuddin and another reported in AIR 1997 SC 1995, the Apex Court observed that when the Court allowed

the respondent to deposit the balance consideration though at the risk of the plaintiff. Thus, it amounts to extension of time by the Court.

Considering the case in hand, in the light of the principle laid down by the Apex Court in the aforesaid judgments, it transpires that in the

application under Order 21 Rule 34 CPC, the respondent-decree holder sought permission of the Court to deposit the amount which was allowed by

the Court below vide order dated 03.07.2007.

The Court has discretion and power to extend the time to make payment of the amount or to perform the condition mentioned in the decree for

specific performance. Though, in the present case, the respondent-decree holder has offered explanation for delay in depositing the amount directed

by the judgment and decree dated 03.04.1987 but even every day's delay is assumed to be not explained by the respondent-decree holder, the Court

has discretion to enlarge the time to comply with the conditional decree.

The judgment and decree passed by the trial Court attained finality when the S.L.P. was dismissed by the Apex Court on 14.09.2007 and amount

was deposited in the Court much before the order of the Apex Court dated 14.09.2007. A perusal of the material placed on record does not show that

there was a willful default on the part of the respondent-decree holder to make the deposit justifying the Court to refuse the extension of time. The

right of the respondent-decree holder to get the sale deed executed in his favour can not be taken away merely on technical ground.

Apart from, the petitioner-judgment debtor submitted application under Section 28 of the Specific Relief Act, for rescission of the contract much

after the Court passed order for making deposit of the amount exercising its discretion vested in it, vide order dated 03.04.2007. The exercise of

discretion by permitting the respondent-decree holder to deposit the amount by the Court below having regard to the averments made in the application

under Order 21 Rule 34 CPC seeking permission to deposit the amount is within the power and jurisdiction of the Court under Section 28 of the

Specific Relief Act. Though, the Court below has not in so many words specifically mentioned in the order dated 03.07.2007 for extension of time but

the averments made in the application under Order 21 Rule 34 CPC seeking permission to deposit the amount coupled with the order dated 03.07.2007

clearly goes to show that the Court below has granted permission to the respondent-decree holder to deposit the balance amount. The Court below by

a detailed order dated 17.09.2019 confirmed its earlier order dated 03.07.2007.

The judgments cited by the learned counsel for the petitioner-judgment debtor are distinguishable on facts and not applicable in the facts of the

present case.

Accordingly, this Court does not find any valid and justifiable reason to interfere with the impugned order dated 17.09.2019 passed by the Court

below.

In view of the above, the revision petition is hereby dismissed being devoid of force.