PRAKASH SINGH v. BHANWAR SINGH — 1985 DIGILAW 276 (ALL)

JUDGMENT V.P. Mathur, J. - By his order dated 31-5-1984 Mr. Sunil Bhatnagar, the then 1st Additional Civil Judge, Meerut, allowed an application moved by the judgment debtor and purporting to be under Section 28 of the Specific Relief Act for recession of an agreement on the basis of which the suit for specific performance had been decreed in favour of the decree holder. It is against this order that the present revision has been filed by the decree holder. 2. It so happened that original suit no. 275 of 1971 for specific performance of a contract for sale was filed by the present revisionist against Lahiri Singh and others. This suit was dismissed by the court below on 12.3.1973. Against this order First Appeal from Order no. 62 of 1973 was filed and it was allowed and the following order was passed by this Court. "In the result, we allow the appeal and modify the decree of the trial court and decree the plaintiff's suit and direct the defendants to execute the sale deed by accepting Rs. 27,500/- within three months. If the defendant-respondents fail to carry out this direction, it will be open to the appellant to deposit the sale consideration of Rs. 27,500/- in the trial court, thereupon a sale deed shall be executed in appellant's favour by the Court. The cross objection is dismissed. The parties shall bear their own costs". 3. This order was passed on 12.9.1980 against this order the judgment debtor opposite parties went up to the Supreme Court through a Special Leave petition no. 9182 of 1980. The Special Leave was granted and simultaneously vide order dated 30.10.1980 ex-parte stay of dispossession pending notice was also passed. After the Service of the notice, this order of stay was confirmed with certain conditions on 03.12.1980 and the condition was that the judgment debtor was directed to deposit three month's mesne profits in the trial court. It appears that in the meanwhile on 20.8.1982 while the petition was pending before the Supreme Court the decree holder put in his execution application no. 25 of 1982 before the court below but did not prosecute it and, therefore, it was struck off for non prosecution on 05.8.1983. Ultimately on 25.10.1983 the Supreme Court dismissed the appeal and confirmed the order passed by the High Court. Then on 05.12.1983 second execution application was moved. 25 of 1982 before the court below but did not prosecute it and, therefore, it was struck off for non prosecution on 05.8.1983. Ultimately on 25.10.1983 the Supreme Court dismissed the appeal and confirmed the order passed by the High Court. Then on 05.12.1983 second execution application was moved. The sale consideration was earlier deposited on 30.11.83. During the course of the second execution, objection was raised by the judgment debtor that since the decree-holder has not taken steps to perform his part of the contract the contract stands rescinded under Section 28 of the Specific Relief Act and the execution should be dismissed. 4. The contention of the decree holder revisionist is that no time limit was fixed for him to carry out any part of the order of the High Court and every thing had to be done by the respondents and after they failed to perform their duty as assigned by the High Court vide its order dated 12.9.1980, it was for the decree-holder to seek execution of the decree through court whenever he wished to do so and as such the learned court below was not justified in holding that the contract was rescinded. 5. In the case of Bisum Prasad Mishra v. Kamla Kant Jha and others AIR 1972 Patna 322, it has been held that the power under Section 28 of the Specific Relief Act is a discretionary one and the court on flimsy grounds cannot exercise its power and annul the decree once passed by it. A clear case of default has to be found out in order to give relief of decision of the contract so as to nullify the decree of specific performance. 6. The question which arises for determination is as to what is the effect of the decree passed by the High Court and the effect of the filing of an appeal in the Supreme Court and of the stay granted by the Supreme Court. A perusal of the order of the High Court which has been quoted above will clearly shows that the defendants were directed to execute the sale deed within a period of three months by accepting Rs. 27,500/-. Obviously, acceptance of Rs. 27,500/- could not take place unless the amount was offered. Therefore, within the period of three months it was the duty of the decree holder plaintiff to officer Rs. 27,500/-. Obviously, acceptance of Rs. 27,500/- could not take place unless the amount was offered. Therefore, within the period of three months it was the duty of the decree holder plaintiff to officer Rs. 27,500/- and then it was for the defendants to accept the money and execute the deed. There is nothing on record to show that such an offer was made. Before the court below an oral statement was made to the effect that a number of times offers were made but no evidence in support of that fact was adduced. Therefore, I am in agreement with the learned court below that the decree that was passed, in the special circumstances of the case was a decree, which placed upon both the parties certain obligations to perform within a time limit and both the parties failed to perform their obligations. Nevertheless, that would not be material in the special circumstances of this case when it is not disputed that against the High Court order dated 12.9.1980 first, Special Leave petition no. 9182 of 1980 was filed, which was admitted and simultaneously the dispossession was stayed and on 03.12.1980 the order of stay was made absolute with certain modification. The learned counsel for the opposite parties argued that there was no stay of the execution and the only thing that had been stayed by the Supreme Court was the delivery of possession. It is well settled now that delivery of possession of the property is a necessary ingredient of the execution of a decree for specific performance of a contract. Possession over the property for which the suit has been decreed is one of the essential parts of the decree itself and unless possession is delivered, the execution is not complete. So by staying the delivery of possession the Supreme Court virtually stayed the execution itself. In this respect the case of Abdul Razzaq Izzat Ali 1978 (4) A.L.R 840, may be perused. It was a case in which Article 136 of the Limitation Act regarding the starting point of limitation of the decree was considered. It was held that if there is dismissal of an appeal from the decree of the first court, the time for execution will run from the date of the appellate decree, the original decree having merged in the appellate decree. It was held that if there is dismissal of an appeal from the decree of the first court, the time for execution will run from the date of the appellate decree, the original decree having merged in the appellate decree. This finding was based upon the case of Collector of Customs v. East India Commercial Co. Ltd. AIR 1963 SC 1124 , which had laid down that the order of the original authority stands merged in the order of the appellate authority irrespective of whatever might have been the decision, e.g. whether of reversal, modification or mere confirmation. The Supreme Court in the case of Anandilal and others v. Ram Narain and others A.L.R 1984 (10) 514 (SC), while explaining the word 'execution' in Section 15(1) of the Limitation Act held that the term embraces all the appropriate means by which a decree is enforced. It includes all processes and proceedings in aid of and supplemental to the execution. Even if there is partial stay (not absolute and complete stay of the execution) which, however, makes the decree in-executable, the benefit of Section 15 (1) can be extended. Stay of any process of execution is stay of the execution within the meaning of the section. 7. In the case of State of U.P. v. Mohammad Nooh, AIR 1958 S.C. 86 , the observation was: "While it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in the revision, it does so only for certain purposes, namely, for the purpose of computing the period of limitation for execution of the decree as in Batuk Nath v. Munnidevi, 411-A. 104 : AIR 1914 P.C. 65 or for computing the period of limitation for an application for final decree in a mortgage suit as in Jawed Hussian v. Gendan Singh AIR 1926 P.C. 93 ." 8. Examining the position in the present case in the light of the law enunciated above it becomes absolutely clear that although a conditional decree was passed by the High Court on 12.9.1980. Examining the position in the present case in the light of the law enunciated above it becomes absolutely clear that although a conditional decree was passed by the High Court on 12.9.1980. In view of the fact that the matter had been taken to the Supreme Court by way of an appeal and a partial stay had been granted, which had the effect of staying the entire process of execution, the High Court order will be deemed to have merged with the Supreme Court order, dated 25.10.1983 when the appeal before the Supreme Court was ultimately dismissed. From that date the decree holder will have time to execute his decree and 12 years will be available to him for doing so. Therefore, his second execution application dated 5.12.1983 cannot be said to be beyond limitation. He had already deposited the sale consideration on 30.11.1983 in the court below. The fact that the had earlier also moved an execution application, no. 25 of 1982, on 20.8.1982 and did not prosecute it, with the result that it was dismissed on 5.8.1983, will have no effect upon his right to execute the decree for the second time within the period of limitation. The non-prosecution of the earlier execution application was obviously due to the fact that the appeal was pending in the Supreme Court and the proceedings were virtually stayed on account of the partial stay order. 9. In the light of this, I find that the order passed by the court below is not justified and the application of Section 28 of the Specific Relief Act was not called for in this case. As such the revision is allowed with costs. The impugned order is set aside and the case shall go back to the court below with a direction to proceed with the execution according to law.