Satyakam Tandon vs Murlidhar Pinjani and Others

S.K. Gangele, J.—1. This revision petition has been filed against the order dated 07.11.2015 passed in M.J.C. 241-A/2007. The plaintiff/applicant entered into an agreement dated 18.10.1988 in regard to purchase of a land which was of the ownership of the non-applicant, area 2.47 acres, situate at village Badwai, Tehsil Huzur, District Bhopal. As per agreement, plaintiff had to pay an amount of Rs. 2,61,820/- as consideration of the land. 10% of the amount Rs. 26,182/- was paid at the time of execution of agreement and it was agreed that remaining amount Rs. 2,35,638/- shall be paid at the time of execution of the sale deed.

The non-applicant did not execute the sale deed; hence, applicant filed a suit for specific performance of contract. The trial Court decreed the suit vide judgment and decree dated 03.08.1995. The Court passed the following decree:

"This suit coming on this day for final disposal before me in the presence of (for the plaintiff) Shri Sobhani, Advocate. (for the defendant) Shri Khirwadkar, Advocate, Shri K.K. Jain, Advocate. It is ordered and decreed that the plaintiff succeeded in establishing his case. Therefore, the decree be passed against the defendants No. 1 and 2 in favour of plaintiff that defendants No. 1 and 2 to execute sale-deed of suit land survey No. 428/1/3/2 measuring area 2.47 acres situated at Village Badwai, Tehsil huzure, District Bhopal in favour of the plaintiff after receiving remaining consideration of Rs. 2,35,638/- from the plaintiff before the Sub-Registrar within one month from today. The defendants should also pay plaintiff the cost of present suit and counsel''s fees as per schedule. In case of default to execute by the Court in favour of plaintiff."

Against the aforesaid judgment and decree, the non-applicant filed an appeal before the High Court on 07.09.1995. The Appellate Court vide order dated 02.11.1995 granted stay of the execution of the decree. Thereafter, vide judgment dated 06.02.2007 this Court dismissed the appeal No. 288/1995.

The applicant-decree holder filed execution proceedings on 21.03.2007.

In the execution proceedings, the non-applicant filed an application on 26.06.2007 under Section 28 of the Specific Relief Act. An application for extension of time was also filed by the decree holder. On the aforesaid application, a case M.J.C. No. 6/2008 was registered and on the application filed by the non-applicant under Section 28 of the Specific Relief Act, a case M.J.C. No. 241-A/2007 was registered. Both the M.J.C. were decided by the executing Court vide common order dated 13.12.2012. Against the aforesaid order, a civil revision was filed before this Court. It was registered as Civil Revision No. 21/2013. This Court vide order dated 17.06.2015 partly allowed the civil revision and after setting aside the order impugned remanded the matter to the executing Court with the following directions:

"30. For the aforesaid reason, the revision is partly allowed. The order impugned is set aside and the matter is remitted to the Trial Court to appreciate the evidence available on record in appropriate manner and to decide the application of the applicants afresh. The Trial Court is further directed to consider the aspect of granting compensation to the decree-holder/respondent in case the Trial Court reaches to the conclusion that the application for rescinding with the contract filed by the applicants is required to be allowed, as the amount of earnest money paid by the decree-holder/respondent to the applicants was kept in their possession right from 18.10.1988 to 22.01.1998 and same was returned to the decree-holder only after order passed by the Division Bench of this Court in the First Appeal of the applicants. The Trial Court would ascertain appropriate rate of interest on the said amount for the period it was in possession of the applicants. Nevertheless since the cost of the litigation was also allowed even by the first Appellate Court, the Trial Court would also be required to pass appropriate orders for payment of cost to the decree-holder/respondent in case ultimately the Trial Court reaches to the conclusion that contract has to be rescinded with because of non-compliance of mandate of the decree by the decree-holder. It be done within a period of four months from the date of receipt of copy of this order passed today. Registry is directed to send back the record of Trial Court immediately with a copy of this order.

The revision is allowed to the extent indicated herein above. There shall be no order as to costs."

In pursuance to the impugned order, the executing Court allowed the application filed by the non-applicant under Section 28 of the Specific Relief Act and set aside the agreement dated 18.10.1988 and decree dated 30.08.1995 and further held that the decree holder shall not be eligible to execute the decree. The Court further held that the non-applicant shall pay 6% interest to the applicant on an amount of Rs. 26,182/- for a period 18.10.1988 to 03.03.1998.

The learned counsel appearing on behalf of the petitioner has contended that the order passed by the executing Court is contrary to law and the Court has committed an error of jurisdiction in allowing the application filed by the non-applicant. It is further submitted by the counsel that the applicant was ready and willing to obey the terms and conditions of the judgment and decree passed by the trial Court. He had served a notice, however, the respondents were not willing to execute the decree. Hence, the finding recorded by the trial Court that the plaintiff-applicant was responsible in not complying the terms and conditions of the decree is arbitrary and illegal.

Learned counsel appearing on behalf of the respondents Mr. Siddharth Gupta has contended that the petitioner did not follow the terms and conditions of the decree, neither applicant-petitioner deposit the amount as per the decree within time. Hence, the Court has rightly passed the order impugned. No error of jurisdiction has been committed by the Court in passing the order, hence, there is no merit in this petition.

It is not necessary to mention all the facts in this order. The revision petition has been heard on the question of admission. The executing Court has mentioned detail facts in its order. It is clear from the decree that the defendant was directed to execute the sale deed in favour of plaintiff of the suit land after receiving remaining consideration of Rs. 2,35,638/- from the plaintiff before Sub-Registrar within one month from today i.e. the date of decree which is 03.08.1995. The executing Court after appreciation of oral evidence has held that the petitioner received the information of decree on the same day i.e. 03.08.1995. His counsel filed application for getting certified copy of the judgment and decree on 04.08.1995 and same was delivered to him on 30.09.1995. However, the petitioner did not file any execution proceeding before the trial Court after receiving the certified copy of the judgment and decree and he filed the execution proceedings on 21.03.2007. These facts are not controverted in this civil revision petition.

The non-applicant filed appeal against the judgment and decree on 07.09.1995. Thereafter, this Court passed order of stay in first appeal on 02.11.1995. Up to that date i.e. 02.11.1995, there was no stay in regard to execution of judgment and decree. The petitioner in his evidence before the executing Court deposed that he had informed the non-applicant on phone on 01.09.1995 in regard to execution of sale deed, however, the non-applicant refuted the same. No call details have been filed by the petitioner in this regard before the trial Court. He did not explain that why he had not filed any execution proceeding up to 02.11.1995. Although as per the judgment and decree he had to pay remaining part of consideration of Rs. 2,35,638/- to the defendant/non-applicant within one month from the date of decree, then he was eligible to get the sale deed executed in his favour.

The Apex Court in the matter of Bhupinder Kumar vs. Angrej Singh reported in , (2009) 8 SCC 766 has held as under in regard to power of the Court to extend the time for complying with the decree or grant an order of recession of the agreement under Section 28 of the Specific Relief Act:

"21. It is clear that Section 28 gives power to the court either to extend the time for compliance with the decree or grant an order of rescission of the agreement. These powers are available to the trial court which passes the decree of specific performance. In other words, when the court passes the decree for specific performance, the contract between the parties is not extinguished. To put it clearly the decree of specific performance is in the nature of a preliminary decree and the suit is deemed to be pending even after the decree.

Sub-section (1) of Section 28 makes it clear that the court does not lose its jurisdiction after the grant of decree for specific performance nor it becomes functus officio. On the other hand, Section 28 gives power to the court to grant an order of rescission of the agreement and it has the power to extend the time to pay the amount or perform the conditions of decree for specific performance despite the application for rescission of the agreement/decree. In deciding an application under Section 28(1) of the Act, the court has to see all the attending circumstances including the conduct of the parties.

If we apply the above principles to the facts of the present case, the order of the executing court and the High Court cannot be faulted with. The suit for specific performance is in the nature of a discretionary remedy and on equity, the appellant was not entitled to get the decree executed since he failed to place relevant materials about his inability to tender or deposit the decreed amount."

It is not necessary to consider all other judgments on this point because earlier Court has elaborately considered the legal position while deciding the revision petition.

The Apex Court has clearly observed that in deciding the application under Section 28 (1) of the Specific Relief Act, the Court has to consider all the attending circumstances including the conduct of the parties. In the present case, it is an admitted fact that the petitioner filed execution proceedings on 21.03.2007. He did not file any execution proceeding within 30 days from the date of passing of the decree by the trial Court i.e. on 03.08.1995, although he had information about the judgment and decree dated 03.08.1995 on same day. The High Court passed order of stay in appeal on 02.11.1995. He filed application for extension of time in the year of 2008. The petitioner sent a notice through his counsel on 10.01.2008 to the respondent alongwith draft sale deed and called him for execution of the sale deed before the Registrar on 04.02.2008. This itself shows that prior to this the petitioner had not taken any step in regard to compliance of the decree granted by the trial Court in his favour. In such circumstance, in my opinion, the executing Court has rightly passed the order in favour of the respondents. No error of jurisdiction has been committed by the executing Court while passing the impugned order. I do not find any merit in this revision petition. It is hereby dismissed.

No order as to costs.