Veerappa vs Basavanyappa

N. Kumar, J.—These are the plaintiffs'' writ petitions challenging the common order passed by the Executing Court, on I.A. No. 1, an application filed under Section 28(2) of the Specific Relief Act, 1963 and I.A. No. 2, an application filed under Section 151 of Code of Civil Procedure, 1908. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

Defendant is the owner of the property, which is more fully described in the schedule and (hereinafter referred to as the ''schedule property''). The schedule property is a vacant site. The plaintiffs entered into an agreement to purchase the said schedule property on 31-6-1969 for a sum of Rs. 1,500/-. A sum of Rs. 400/- was paid in advance as execution of the agreement. In part performance of the sale, possession is also delivered. When the defendants did not execute the sale deed, plaintiff filed O.S. No. 119 of 1973 for the relief of specific performance of the agreement of sale. The suit, after contest came to be decreed on 25-9-1978. The defendants, being aggrieved by the said judgment and decree, preferred an appeal in R.A. No. 111 of 1979. The said appeal also came to be dismissed on 30-3-1982. There was no further appeal. The plaintiff filed execution petition in Execution Case No. 15 of 2010 on 4-3-2010. In the said execution petition, the defendant filed an application under Section 28(2) of the Specific Relief Act for recession of the contract and directing the plaintiff to restore possession. That application was filed on 4-3-2010. After the filing of the said application, the plaintiff opened his eyes and filed an application under Section 151 of CPC on 23-7-2011 for condoning the delay in payment of the balance sale consideration in terms of the decree. Both the applications were considered together and by the impugned order, the plaintiffs application was dismissed and the defendants application is allowed. It is against these two orders, the plaintiffs are before this Court.

Learned Counsel for the plaintiffs/petitioners submits that in the first place, no period was stipulated for the payment of balance sale consideration in the decree and therefore, it is not correct to say that the balance sale consideration is not paid within the period of limitation of 12 years. Therefore, he further submits, the execution proceedings in respect of a decree for specific performance is in the nature of continuation of the suit and therefore, this execution application could not be dismissed on that ground. Further, under Section 28(2), the Court has amicable power to extend the time for payment of balance sale consideration, which power has not been properly exercised by the Trial Court. Lastly, it is contended that if the execution petition is barred by time, the same is not maintainable and therefore, the Trial Court committed a serious error in allowing the said application and therefore, he submits that the order cannot be sustained.

On the contrary, learned Counsel for the respondents/defendants supports the impugned order.

This Court had an occasion to consider the scope of Sections 28(1), 28(2)(b) and 65 of the Contract Act, 1872, in the case of T.L. Rajagopal Vs. S.N. Shivakumar, , on considering the various judgments including the several judgments of the Supreme Court, this Court held as under:

"17. In the light of the ratio laid down in the aforementioned judgments, the law on the point can be said to be fairly settled: A decree for specific performance being in the nature of a preliminary decree, the Court after passing of the said decree does not become functus officio. It retains the jurisdiction to conclude the further steps to be taken in the suit. The decree-holder chooses to file an execution petition for getting the sale deed registered through the Court when the defendant who suffered the decree fails to obey the same. Though called ''execution proceedings'', it is nothing but continuation of the original suit. In a suit for partition, after the preliminary decree is passed, to give effect to the preliminary decree, it is necessary to initiate final decree proceedings. But in a suit for specific performance it is called as ''execution proceedings''. Thus when the Court that passed the decree for specific performance and the Court executing the said decree are one and the same, Section 28 of the Act gives equal opportunity to the parties to the suit. If the plaintiff/decree-holder for any reason is unable to deposit the balance sale consideration, he is given a right to apply to the Court that passed the decree seeking extension of time to deposit the money and the Court is vested with the power to grant such extension. At the same time when the plaintiff commits default in making payment, a right is conferred upon the defendant/judgment-debtor to approach the Court under Section 28 of the Act seeking rescission of the contract. Here again the Court has the discretion to rescind the contract notwithstanding the fact that the decree has attained finality".

In the instant case, the agreement of sale was entered into between the parties in the year 1969 i.e., on 31-6-1969. The total sale consideration agreed to be paid was Rs. 1,500/- out of which Rs. 400/- was paid in advance in part performance of the agreement of sale. Possession was delivered to the plaintiff. He is enjoying the possession uninterruptedly from 31-6-1969. The suit for specific performance was filed on 3-6-1978. After contest, a decree was passed on 25-9-1978 decreeing the suit of the plaintiff directing the 1st defendant to receive the balance of sale consideration and execute the sale deed in favour of the plaintiff within six months from the date of the decree. The defendant preferred an appeal against the said judgment and decree. The appeal came to be dismissed by an order dated 30-3-1982. 90 days is the time prescribed for preferring a second appeal against the said judgment and decree from the date of receipt of a copy of the order. Admittedly, no appeal was filed. The balance sale consideration of Rs. 1,100/- was not deposited by the plaintiff in Court on the expiry of the period prescribed for preferring the appeal. He also did not issue any legal notice calling upon the defendants to receive the balance sale consideration and execute the sale deed. It is only after a period of 28 years, he filed Execution Case No. 15 of 2010. Even at the time of filing of the execution case, he did not deposit the balance sale consideration of Rs. 1,100/-. In the said execution proceedings, the defendant judgment-debtor after service of notice filed an application under Section 28(2) of the Specific Relief Act, 1963 praying for recession of contract and restoration of possession. It is thereafter, the plaintiff opened his eyes filed an application under Section 151 of CPC on 23-7-2011 requesting for extension of time for depositing the balance sale consideration of Rs. 1,100/-. Therefore, it is clear that the plaintiff has slept over the matter. He was enjoying the property being in possession, without paying the sale consideration. He has not obeyed the terms of the decree and it is only after the judgment-debtor filed an application for recession of the contract, he filed an application for time to pay the balance of sale consideration. The relief of specific performance being an equitable relief, he who seeks equity must do equity. In the facts and circumstances of this case, the Executing Court was justified in dismissing the application filed by the plaintiff and allowing the application filed by the defendant for recession of the contract and directing restoration of property to the defendant. The order passed is an equitable one. The Trial Court exercised its equitable jurisdiction in a proper manner. Therefore, this Court, while exercising its discretionary and equitable jurisdiction under Article 226 of the Constitution of India do not find any justification to interfere with a well-considered equitable discretionary order. No merits. Petitions are dismissed.