N.V.S.M. Anandvale vs K.T. Santhanakrishnan

G. Rajasuria, J.—Inveighing the order dated 29-10-2004, passed in I. A. Nos. 5180 and 6296 of 2003 and 10407 of 2004 respectively in

O. S. No. 5231 of 1998 on the file of the XIII Asst. Judge, City Civil Court, Chennai, these civil revision petitions are focussed.

Heard both sides.

Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of these three revisions would

run thus:

(i) The revision Petitioner filed the suit O. S. No. 5231 of 1998 seeking specific performance of agreement to sell. After contest, the Court passed

the compromise decree on 19-3-2001 as per Clauses 4 and 5 of the memo of compromise, which would run thus:

Clause 4: The 1st Defendant has to execute the sale deed on the stamp papers furnished by the Plaintiff and the entire registration expenses have

to be borne by the Plaintiff. The 1st Defendant has to execute the sale deed in favour of the Plaintiff or his nominee within two months from this

date. The balance of sale consideration will be paid before the Sub-Registrar at time of registration.

Clause 5: If the 1st Defendant fails to execute and register the sale deed within the aforesaid period, the Plaintiff shall deposit the balance of sale

consideration into Court and the document can be executed through Court.

(ii) The compromise decree passed is as under:

(i) That on payment of balance sale consideration of Rs. 1,30,500/- by the Plaintiff before the Sub-Registrar, the 1st Defendant on or before 19-5-

2001 do convey, execute and register at the costs of the Plaintiff, the deed of sale conveying to the eastern half of the suit property described in the

schedule hereunder and marked RED in the plan annexed with the compromise memo;

(ii) that in the case of 1st Defendant failing to execute and register the sale deed as per Clause (i) supra, the Plaintiff be at liberty to apply to Court

for a deed of sale being executed in favour of the Plaintiff in respect of the property mentioned in the schedule hereunder ;

(iii) that the 1st Defendant shall retain the original sale deed of the suit property described in the schedule hereunder and the registration copy of the

same shall be given to the Plaintiff;

(iv) that there be no costs in this suit; and

(v) that the memo of compromise do form part of the decree.

(iii) The contention of the Defendant/ Santhanakrishnan was that within the time stipulated in the compromise decree as well as in the compromise

memo, the Plaintiff failed to pay the requisite amount, whereupon the decree became inoperative. Subsequently I. A. No. 5180 of 2003 was filed

by the Plaintiff to get the decree amended with the following prayer:

To amend the decree to make it in conformity with the judgment.

(iv) Subsequently, during the pendency of that, one other I. A. No. 6296 of 2003 was filed by the Defendant invoking Section 28 of the Specific

Relief Act with the following prayer:

To rescind the contract dated 27-1-1980 being the subject-matter in the above suit.

(v) The revision Petitioner also filed yet one other I. A. No. 10407 of 2004 seeking permission to deposit the balance amount to the credit of the

suit, so to say after three years and three months from the date of the compromise decree. The Court heard all the three applications together and

by common order dated 29-10-2004 allowed the application filed by the Defendant invoking Section 28 of the Specific Relief Act, thereby the

agreement to sell itself was rescinded, whereas, the other two applications filed by the revision Petitioner were dismissed.

Being aggrieved by and dissatisfied with the orders passed in all the three applications, these three revisions have been filed more or less on one

and the same set of grounds.

The points for consideration would be as under:

(1) Whether any amendment to the compromise decree is warranted on the ground that it has not got incorporated in the operative portion of the

decree reflecting the true spirit of the compromise memo filed by both parties?

(2) Whether the preference of the revisions as against the order passed by the lower Court invoking Section 28 of the Act is an appealable or

revisionable one?

(3) Whether there is any ground for extending the time for deposit of the amount as contemplated in the compromise decree by the Court?

POINT No. 1:

In respect of point No. 1, the learned Senior Counsel for the Plaintiff would submit that the compromise decree passed failed to reflect the true

spirit of the memo of compromise and it has been projected in the decree as though the duty was cast upon the Plaintiff to contact the Defendant at

the first instance and impliedly it connotes and denotes as though the Defendant could be passive and remain silent. Accordingly, canvassing the

aforesaid point, the learned Senior Counsel for the Plaintiff prays for ordering modification of the compromise decree, by setting aside the order of

the lower Court in the application concerned.

Whereas, the learned Counsel for the Defendant would submit that absolutely there is; nothing wrong in the decree passed by the lower Court

as in the compromise decree, all the features incorporated in the memo of compromise got reflected in the decree and no amendment is required.

At this juncture I recollect and call up the trite proposition of law that a decree arid more specifically a compromise decree has to be read

conjunctively so to say only in conjunction with'' the memo of compromise and accordingly understood. In the case of ordinary decree, whenever

there is any doubt, one will be referring to the judgment because a decree should be in consonance, in pari materia, in alignment with the judgment

pronounced. However, in the case of compromise decree, there could be no reasoned judgment passed by the trial Court and in such a case, one

has to refer only to the memo of compromise. Here, the lower Court took pains to add a clause also to the effect that the memo of compromise

shall form part and parcel of the compromise decree itself. Hence, in such a case I could see no reason for amending the decree and the Executing

Court while interpreting the decree can very well place reliance on the clauses in the memo of compromise itself and accordingly, interpret the

decree. No party can have a right to say that the clauses in the memo of compromise should not be seen and only the operative portion as

understood by the Court and incorporated in the decree alone should be considered. As such, I am of the considered view that there could be no

difficulty at all in pressing into service the clauses in the memo of compromise in any of the allied proceedings. Accordingly, I could see no merit in

CRP No. 1273 of 2006 and no interference with the order of the lower Court is required and the same stands dismissed.

POINT Nos. 2 AND 3:

The learned Senior Counsel for the revision Petitioner placing reliance on the decision of this Court reported in 1998 (II) MLJ 1995

(Narasimhan v. Balammai 1998 (II) MLJ 1995) would develop his argument to the effect that earlier this Court in similar matter entertained

revision and in such a case, this Court also could entertain these revisions. Whereas, the learned Counsel for the Defendant would submit that if the

application u/s 28 of the Specific Relief Act is allowed, then their emerges a decree rescinding the very agreement to sell itself and it is quite

obvious that from any decree, appeal would lie as per Section 96 CPC read with Order 41, Rule 1 of Code of Civil Procedure, but on the Other

hand, if such an application is dismissed then alone the question of filing revision would arise. I would like to agree with the view expressed by the

learned Counsel for the Defendant. In fact, the decision of this Court reported in 1998 (II) MLJ 1995 (Narasimhan v. Balammai) (cited supra) as

cited by the learned Senior Counsel for the revision Petitioner was relating to a case where the petition u/s 28 of the Specific Relief Act was

dismissed and whereupon, revision was filed and the said case was not relating to a case where application u/s 28 of the Specific Relief Act was

allowed.

At this juncture it is worth and necessary to refer to the definition of decree as per Section 2(2) of CPC and the same is extracted hereunder:

2(2) ""Decree"" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights

of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include

the rejection of a plaint and the determination of any question within Section 144, but shall not include --

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

The ingredients of decree would run thus:

A ""decree"" has to have the following essential elements, namely: (1) There must have been an adjudication in a suit, (ii) the adjudication must have

determined the rights of the parties in respect of, or any of the matters in controversy, (iii) such determination must be a conclusive determination

resulting in formal expression of the adjudication.

I would also incidentally like to refer to the decision of the Hon''ble Apex Court reported in Kumar Dhirendra Mullick and Others Vs. Tivoli

Park Apartments (P) Ltd., cited by the learned Senior Counsel for the revision Petitioner himself, wherein the facts are that on the rescission of the

agreement to sell u/s 28 of the Specific Relief Act, there arose an appeal and not a revision. Section 28 of the Specific Relief Act is reproduced

hereunder for ready reference:

Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been

decreed.--

(1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser

or lessee 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, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract

rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether, as the

justice of the case may require.

(2) Where a contract is rescinded under Sub-section (1), the Court--

(a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the

vendor or lessor, and

(b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which

possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so

requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.

(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in

Sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to,

including in appropriate cases all or any of the following reliefs, namely:

(a) the execution of a proper conveyance or lease by the vendor or lessor;

(b) the delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.

(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or

lessee, as the case may be.

(5) The costs of any proceedings under this section shall be in the discretion of the Court.

A mere running of the eye over it would display and demonstrate, evince and evidence that a significant right is expected to be decided u/s 28

of the Act. It also presupposes the dictum as found enunciated in catena of decisions that the judgment passed in a specific performance suit is only

in the nature of a preliminary decree and by passing the decree the Court does not lose its jurisdiction over the matter nor it does become functus

officio on passing such decree. If there is default on the part of the Plaintiff, the Defendant is given the right to approach the Court u/s 28 of the Act

for getting not only the preliminary decree erased but also the very root of the preliminary decree, namely the very agreement to sell. Such right

relating to cause of action itself once decided u/s 28 of the Act by rescinding the very agreement, undoubtedly it would amount to a decree of the

Court over which the appeal would lie. As such, I am of the considered opinion that the revision filed as against the order passed u/s 28 of the Act

is an appealable one as it is a decree and only the appellate Court. In this case, which happens to be the Additional City Civil Court shall deal with

the matter. Then the question might arise as to what would happen to their application seeking permission to deposit the amount. While deciding

the appeal relating to Section 28 of the Act, necessarily the right of the Plaintiff to get extended the time which was prayed and rejected by the

lower Court also would arise and in my opinion they become two sides of a coin, so far as this case is concerned in view of its peculiar

circumstances. Wherefore, the appellate Court has to decide the matter relating to extension of time also while deciding the matter which has arisen

out of invocation of Section 28 of the Specific Relief Act. In the interest of justitia pie ponderous and to avoid multiplicity of proceedings, I would

like to return the CRP Nos. 1274 and 1275 of 2006 to the revision Petitioner who shall represent the same before the appellate forum concerned

on or before 10th August, 2010, whereupon, the appellate Court shall treat C. R. P. No. 1274 of 2006 as appeal before it and the CRP No.

1275 of 2006 as I. A. in that appeal and accordingly, both the matters shall be heard together and disposed of within a period of two months from

the date of receipt of a copy of this order.

The learned Counsel for the Defendant would correctly point out that while my learned predecessor was hearing the matter, pay order sent in a

cover to the Plaintiff was presented before him and in the presence of my learned Predecessor that was opened and seen. Since the CR Ps are

disposed of with the above direction, the said cover with the pay order shall be returned to the learned Counsel for the Plaintiff.

Accordingly, CRP No. 1273 of 2006 is dismissed and CRP Nos. 1274 and 1275 of 2006 are disposed of. No costs. Consequently, connected

miscellaneous petitions are closed.