Ram Singh vs Jana Devi and Another

Alok Singh, J.—Defendant-Judgment debtor has invoked jurisdiction of this Court under Article 227 of the Constitution of India assailing order dated 10.3.2010 passed by Executing Court (Addl. Civil Judge (Sr. Divn.) Fatehabad) whereby learned Executing Court has dismissed the application moved by the judgment debtor to dismiss the execution application.

The brief facts inter alia are that respondent-plaintiff has filed suit for specific performance of the contract on the basis of agreement to sell dated 6.11.2003 against the defendant (petitioner herein) being Civil Suit No. 45-C of 2005 which was decreed by the Court of Addl. Civil Judge (Sr. Divn.) Fatehabad vide judgment and decree dated 13.12.2006. Learned trial Court while decreeing the suit of the plaintiff-respondent directed the plaintiff to make payment of the balance sale consideration within 30 days from the date of passing of this judgment and to intimate the defendant forthwith whereafter the defendant shall bound to get sale deed executed within 30 days.

Feeling aggrieved from the judgment and decree, defendant (petitioner herein) preferred first appeal in the Court of District Judge, Fatehabad. First Appellate Court initially stayed impugned judgment and decree dated 13.12.2006, however, ultimately first appeal was dismissed on 22.5.2007. Plaintiff-decree holder, however, deposited the sale consideration in the Executing Court on 17.1.2007 vide Challan No. 44.

In the Execution Application No. 52-Misc. of 2008 carried out by the plaintiff-decree holder (respondent herein) judgment debtor-defendant (petitioner herein) moved an application praying for dismissal of the execution application contending that in compliance of judgment and decree dated 13.12.2006 balance consideration ought to have been deposited on or before 12.1.2007 which was admittedly deposited on 17.1.2007, hence, decree/contract stood rescinded in view of Section 28 of the Specific Relief Act. Learned Executing Court did not find favour with the judgment debtor -petitioner and found favour with the decree holder - respondent and ultimately dismissed the application moved by the judgment debtor -petitioner vide impugned order.

Learned Counsel for the petitioner - judgment debtor vehemently argued that in compliance of judgment and decree dated 13.12.2006, plaintiff was supposed to deposit the amount on or before 12.1.2007, since, direction was to deposit the amount within 30 days from the date of passing of the judgment. He further argued that since amount was not deposited on or before 12.1.2007 and was deposited on 17.1.2007, hence, agreement to sell stood rescinded in view of Section 28(1) of Specific Relief Act. Learned Counsel for the petitioner has placed reliance on the judgment of this Court in the matter of Reshma Singh and Others Vs. Manmohan Singh Kent and Others, .

Learned Counsel for the respondent-plaintiff decree holder vehemently argued that although decree was passed on 13.12.2007 directing the plaintiff to deposit balance consideration within 30 days, however, period of 30 days shall be counted after excluding the day/date of the judgment, in view of Section 9 of General Clauses Act. He has further stated that plaintiff-decree holder had to deposit the amount on or before 13.1.2007. Since 13.1.2007 was Saturday and 14.1.2007 was Sunday, hence Treasury and Court were closed and amount could not be deposited. He further stated that on reopening on 15.1.2010, the tender was passed and after obtaining the tender, he promptly deposited the amount on 17.1.2007. He further stated that to take benefit of Section 28 of Specific Relief Act, defendant-petitioner should have approach the Court who has passed the decree and Executing Court can not pass any order rescinding the contract.

I have heard learned Counsel for the parties and carefully examined the record and relevant provisions of law.

Undisputedly, decree was passed on 13.12.2006 directing the plaintiff-decree holder to deposit the balance sale consideration within 30 days. Undisputedly, judgment and decree passed by learned trial Court dated 13.12.2006 was challenged in civil appeal within limitation by the judgment debtor defendant and Appellate Court within the limitation of filing the appeal has stayed the operation and effect of impugned judgment and decree. Admittedly, thereafter first appeal was dismissed vide judgment and decree dated 22.5.2007.

In view of the above admitted facts that first appeal was filed by judgment debtor (petitioner herein) within limitation and operation and effect of impugned judgment and decree was stayed by the first Appellate Court, hence, there was no need for the plaintiff-decree holder to deposit the amount in compliance of judgment and decree dated 13.12.2006 which was stayed by the first Appellate Court. On the dismissal of the first appeal on 22.5.2007, the period of 30 days would start from the date of dismissal of appeal in view of the stay being granted by the first Appellate Court during the pendency of the appeal. Fact remains that plaintiff-decree holder (respondent herein) has deposited the entire amount on 17.1.2007 during the pendency of the first appeal while stay was already operating against the judgment and decree, hence, amount deposited by decree holder was well within time.

Otherwise also since decree was passed on 13.12.2006 and date of passing of judgment and decree dated 13.12.2006 has to be excluded to count the period of limitation as per Section 9 of General Clause Act. Since 13.1.2007 and 14.1.2007 were Saturday and Sunday and Court and Treasury were closed, hence, tender was passed on 15.1.2007 and soon thereafter amount was deposited by the decree holder which can not be faulted with.

Petition is devoid of merit, hence, is dismissed.