Shiv Prakash Saxena vs Sumitra Devi And 2 Anr.

Ram Surat Ram (Maurya), J.—Heard Sri Ram Kishore Pandey for the petitioner and Sri Shashi Bhushan Rai for the contesting respondents.

This petition has been filed against the order of Executing Court dated 28.11.2015 rejecting the objection of the petitioner under Section 47 C.P.C. and the order of Revisional Court dated 18.3.2016 dismissing the revision of the petitioner filed against the aforesaid order.

On the basis of an agreement to sell dated 25.12.1976, respondent-1 filed a suit for specific performance of contract. The suit was finally dismissed. However, respondent-1 challenged the decree in Civil Appeal No. 16 of 2001, which was allowed by the appellate court by order dated 22.3.2002. The appellate court while passing decree of the suit directed respondent-1 to deposit the remaining amount of sale consideration before the court within a month and the petitioner was directed to execute sale deed in compliance of agreement to sell dated 25.12.1976. Thereafter the plaintiff filed a execution case before executing court on 23.3.2002. Along with execution case the plaintiff has also filed tender for depositing the remaining amount of sale consideration. The executing court by order dated 8.4.2002 permitted the decree holder to deposit the amount and thereafter the amount was deposited on 9.4.2002.

The petitioner filed an objection under Section 47 C.P.C. on the ground that appellate court has granted a month''s time for depositing of remaining sale consideration by the order dated 22.2.2002, while the amount was deposited on 9.4.2002 as such under Section 28 of Specific Relief Act, 1963, the agreement to sell stood rescinded and decree cannot be executed. He further raised an objection that petitioner was directed to execute the sale deed within a month after depositing the remaining sale consideration, therefore execution of case filed on 23.3.2002 is premature and liable to be dismissed. The executing court after hearing the parties by impugned order dated 28.11.2015 found that remaining amount of sale consideration was tendered before the Court on 23.3.2002 which was well within one month period as allowed by the appellate court. Since after deposit of amount, the period of one month has also expired as such it cannot be said that execution proceeding is premature. On these findings executing court dismissed the objection of the petitioner under Section 28 of Specific Relief Act, 1963. The petitioner challenged the aforesaid order in revision. The revision has also been dismissed affirming the finding of the executing court. Hence this petition has been filed.

Counsel for the petitioner submits that under the decree of the appellate court dated 22.2.2002, the plaintiff was required to deposit the amount within one month, therefore, one month come to an end on 23.3.2002 while amount was deposited on 9.4.2002, therefore the decree has become in-executable under Section 28 of Specific Relief Act, 1963. As the agreement to sell, itself has been rescinded, the trial court has committed illegality in holding that amount is deposited well within the time. The execution proceeding was initiated on 23.3.2002 and it was premature as after depositing the amount, the petitioner was given a month''s time to execute the sale deed. The orders of court below are illegal and liable to be set aside. He relied upon Division Bench judgement of this Court in Allahabad Development Authority v. Saifuddin and others, 1998 (3) AWC 1622 in which it has been held that under Section 148 C.P.C. the same court has jurisdiction to extend the time allowed for discharging any duty. He further relied upon the judgement of Supreme Court in V.S. Palanichamy Chettiar Firm v. C. Alagappan and another, 1999 (1)JCLR 1001 SC in which it has been held that if the amount is directed to be deposited, has not been deposited within time allowed by the court then extension application under Section 28 of Specific Relief Act, 1963 was liable to be filed before the same court and not before the higher court as such application filed before the higher court was not maintainable. He relied upon the judgement of Supreme Court in P.R. Yelumalai v. N.M. Ravi, 2015 (2) ARC 262 in which it has been held that if the amount of remaining sale consideration has not been deposited within time allowed by the court then contract itself is rescinded and decree will become in operative.

I have considered the arguments of the counsel for the parties and examined the record.

Under the provisions of General Clauses Act,1897 the date on which any person is directed to discharge his duty has to be excluded. In this case the plaintiff was directed to deposit the remaining amount of sale consideration on 22.2.2002, therefore that date is liable to be excluded for counting one month. The execution case was filed on 23.3.2002 which was well within one month''s time allowed by the court below. So far as deposit of amount on 9.4.2002 is concerned, the amount has already been tendered on 23.3.2002. This Court in M/s Gangotri Sahkari Avas Samiti Ltd. v. M/s Pushpa Sahkari Avas Samiti Ltd, 2002 (1) JCLR 374 (All) has held that the date of which tender was deposited in the court will be treated as actual date of tendering the amount, therefore, the amount has already been tendered in the executing court on 23.3.2002, which was well within the time allowed by the appellate court. In such circumstances, it cannot be said that agreement to sell has been rescinded under Section 28 of Specific Relief Act, 1963.

No interference is required by this Court. Petition has no merit, it is dismissed.