Ram Chand vs Kuldip Singh

A.N. Jindal, J.—Vide impugned order dated 12.2.2011, the execution application of the petitioner was dismissed mainly on the ground that the petitioner/decree-holder (herein referred as ''the petitioner'') despite efficacious remedy available to him, has filed the second execution application which was not maintainable. The factual back ground of the case is that the petitioner had obtained a decree for specific performance from the court of Additional Civil Judge (Senior Division), Jagraon, on 10.11.2005, which attained finality. The operative part of the decree is re-produced as under:-

Accordingly, the suit of the plaintiff is hereby decreed ex-parte with costs for possession of the suit land by way of specific performance of the agreement to sell dated 22.12.2003. The defendant is directed to get the sale deed executed and registered in favour of the plaintiff within two months from today on receiving the balance sale consideration, failing which the plaintiff shall be at liberty to get the sale deed executed through court by way of filing the execution application." Pursuant to the said decree, the decree-holder filed execution on 4.2.2006, wherein the judgment-debtor/respondent filed objection petition on the ground that the sale consideration was not deposited by the petitioner within the time which was a condition precedent for enforcement of the decree. Reply to the said objection petition was filed by the decree-holder pleading as under:-

As regard para No. 4 of the objections, it is submitted that in the judgment and decree there is no order to decree holder to deposit the balance sale consideration in the court within specified period but in case the Hon''ble Court passed order to deposit the balance sale consideration, the decree-holder is ready to deposit the same immediately.

However, the court without directing any such deposit, dismissed the execution application on 25.4.2009 with the observations that the execution application is dismissed for the default on the part of the plaintiff/decree holder, meaning thereby, the court had dismissed the execution application for non-deposit of balance sale consideration within the period fixed by the court.

Thereafter, the petitioner filed another application by depositing the amount of sale consideration in the treasury under the orders of the court on 24.7.2009. The respondent again filed objection petition on 12.4.2010. However, the court dismissed the application summarily on 12.2.2011 with the observation that the same was not maintainable.

Here it may be mentioned that neither the contract was cancelled nor any application for rescinding the same was filed. The second execution application was within time and the amount was deposited under the orders of the court.

Now the only question, which arises for consideration is, "whether the second execution application was maintainable?". Before setting to deliberate over the issue, it would be essential to re-produce the essence of the decree, which reads as under:-

(i) The court only directed the judgment debtor to get the sale deed executed in favour of the plaintiff within two months from 10.11.2005.

(ii) The remedy of the decree holder was only way of execution.

(iii) No condition was imposed upon the decree holder towards deposit.

(iv) The decree was not conditional.

Thus, the necessary inference from the aforesaid terms of the decree, which can be drawn, is that the court did not fix any time for the plaintiff to deposit the amount but only direction was given to the defendant to get the sale deed executed within two months. The decree was not conditional. The first execution application was dismissed on the ground of non-deposit of balance sale consideration, without providing any opportunity to the petitioner to deposit the sale consideration. As regards, the question of successive applications, the Apex Court has deliberated over the issue and observed that the successive applications for execution of the decree are maintainable till it remains unsatisfied and not barred and the policy of law is to give a fair and liberal and not a technical construction enabling the decree-holder to reap the fruits of his decree.

In case Deep Chand versus Mohan Lal AIR 2000 SC, 1760, while dealing with the maintainability of the successive applications, held as under:-

The decree-holder has been proved to have filed successive appellations for the execution of the decree within the period of limitation. The language of Article 136 cannot be strained in favour of the judgment-debtors who have been found to have not availed of the benefits of decree conferred upon them as they are proved to have failed to pay the amount even in installments. The decree in the instant case is not capable of any other interpretation. As a general rule the executing court should not find ways to dismiss the execution application as barred by time unless it is established, beyond doubt, that such an application was beyond limitation.

Even the Privy Council in the case of Govind Prasad Vs. Pawankumar, , observed that successive applications for execution are permitted to be filed but only within the period of limitation provided by law. Article 136 of the Limitation Act, which also supports the filing of the successive applications, reads as under:-

Thus, on a bare perusal of the Article 136 of the Act, an inference could be drawn that the successive applications are not barred. It has also been held by this Court in Yash Pal Sharma Versus Ajit Singh and others 2006 (3) R.C.R. (Civil) 614, that since the rights of the parties stand crystallized with the passing of the decree, therefore, bar created under Order 9 Rule 9 CPC cannot be made applicable, as it precludes the plaintiffs from filling a fresh suit. The provisions of Order 9 Rule 9 CPC cannot be extended in respect of execution of a decree when the rights stand settled and only execution of the decree is required to be made. Therefore, the second execution application, even after decision of the first application, if filed within the period of limitation, was maintainable.

In State of Punjab v. Tara Chand 1989 (1) RLR 37, this Court had also taken the view that the right of the decree-holder to file second execution application, even after the decision of the first application, is not lost and the second application, as such, was maintainable.

Now coming to the other question, "whether the decree-holder was at fault and did not comply with the decree so as to deprive him right of its execution?, the decree did not impose any condition upon the petitioner to deposit the amount within a particular time, rather it directed the defendant to do certain act and failure of the defendant to do so, the petitioner was to apply for the execution of the decree. In such a situation, the court cannot dismiss the execution merely on the ground of nonpayment of sale consideration, particular in the absence of any default clause. Rather, it was obligatory on the part of the court to provide an opportunity to the decree-holder to deposit the said amount in order to further enforce the decree in accordance with law. This Court in the case of Partap Singh Versus Narpat 2010 (94) AIC 351, discussed the situation where no default clause was provided in the decree and observed as under:-"In the case in hand, as noticed herein above, no time was fixed in the decree for deposit of balance sale price by the DH. Secondly, operation of judgment of the trial court was stayed by interim order in first appeal and after dismissal of first appeal, the DH immediately filed execution petition and also made prayer for permission to deposit the balance sale price. Without order of the Executing Court, the treasury or bank would not have accepted the balance sale price. However, the Executing Court passed order on 20.11.2007 only, directing the DH to deposit the balance sale price and the DH accordingly deposited the same. Thus, examined from any angle, in the instant case, there has been no lapse or default on the part of the DH. At the risk of repetition, it may be added that Appellate Courts did not fix any time for the DH to deposit the balance sale price.

It was also observed in the case of Sham Kaur Versus Malagar Singh and another 2004 (2) LJR 678 that in the absence of specific penal consequence in the decree for default of its terms seen in conjuction with the conduct of the decree holder before the Court in not raising any such objection prior to 1996, leaves no scope for any other direction by the Court but to condone the delay of 23 days in depositing the money.

In the present case, the conduct of the petitioner if examined would come to his support, as the earlier execution application of the petitioner was dismissed on the ground that there was fault on the part of the petitioner to deposit the money. In fact, there was no such direction to the petitioner to deposit the money within a particular timeframe. In any case, the court should have provided an opportunity to him to deposit the sale consideration. Again while filing the second execution application he had sought direction from the court to deposit the money and the same was deposited with the treasury at the time of filing the second execution application, but the same was dismissed on the ground that it was not maintainable. This approach of the learned executed court was erroneous and deserves interference. It is also observed that the second execution application is maintainable, if filed within the period of limitation. Resultantly, this petition is allowed, impugned order is set aside and the executing court is directed proceed in accordance with law.