Mosst Ganesh Devi v. Intaf Ansari — 1998 DIGILAW 814 (PAT)

This civil Revision application is directed against the order dated 13-7-1998 passed by the 2nd Munsif, Sasaram, in Execution Case NO.4 of 1995, where by he has directed the parties to adduce evidence if any on the readiness and willingness of the Decree-holder to pay the balance consideration in terms of the decree. 2. The facts of the case lie in narrow compass. The plaintiffs-petitioners, who are Decree holders filed Title Suit No. 256 of 1960 in the court of the Munsif, Sasaram, for a decree for specific performance of contract for sale in respect of the suit property on the basis of the agreement executed by the defendants-opposite parties to sell the disputed land for a sum of Rs. 2500/- out of which a sum of Rs. 1000/- was paid in advance and balance amount of Rs. 1500/- was agreed to be paid at the time of execution of the sale deed. The suit was dismissed by the trial court in terms of the judgment and decree dated 30-7-1977 holding that the plaintiffs are not entitled to get a decree for specific performance of contract. However, decree for refund of the earnest money by the defendants to the plaintiff was passed. Aggrieved by the said judgment and decree the petitioners filed Title Appeal No. 40 of 1977 in the court of the District judge, Sasaram. The said appeal was eventually transferred to the court of the Additional District Judge who after hearing the parties, in terms of the Judgment and decree dated 1-9-1982 allowed the appeal and reversed the judgment and decree of the trial court. The suit was decreed and the defendants were directed to execute a sale deed in favour of the plaintiffs-petitioners within three months from the date of the decree. The defendants-Opposite parties moved this court by filling second appeal being SA No.443 of 1982 and this court after hearing the parties dismissed the aforesaid second appeal in terms of the judgment and decree dated 31-7-1992. The defendants-opposite parties moved the supreme court in SLP (Civil) No, 16146 of 1993 which too was dismissed at the stage of admission in terms of the order dated 19-11-1993. The defendants-opposite parties moved the supreme court in SLP (Civil) No, 16146 of 1993 which too was dismissed at the stage of admission in terms of the order dated 19-11-1993. The petitioners case is that after judgment and decree was affirmed by the High court in second Appeal No. 443 of 1982, an application was filed before the trial court on 30-4-1993 for permission to deposit the rest of the amount of Rs. 1500/- by way of Chalan in the court. That application remained pending for quite long time and again on 19-11-1994 the petitioners filed another application for an order for deposit of the amount by way of chalan. The trial court ultimately by order dated 6-4-1996 allowed the application and directed the office to check and issue chalan. Accordingly, the money was deposited on 10-4-1996. In the meantime the D. Hrs-petitioners filed Execution Case NO.4 of 1995 for execution of the decree and prayed for a direction to the judgment-debtors-Opposite parties to execute a registered sale deed in terms of the decree. In the said execution case the judgment-debtors-Opposite parties filled objection under section 47 of the code of civil procedure stating, inter alia, that since the balance amount of Rs. 1500/- was not deposited by the Decree-holders-petitioners within three months as stipulated in the decree, the decree become in executable, The Executing court after hearing the parties allowed the objection of the Judgment debtors and dismissed the execution case holding that the decree became in executable. Against the aforesaid order dated 22-8-1997 passed by the Executing court the petitioners moved this court in civil Revision No. 1557 of 1997. The said revision application was placed before me and after hearing the parties I allow the revision application and set aside the order of the Executing court. In the said order I have categorically held that the Executing court has committed serious illegality in dismissing the execution case on the bare statement of the judgment-debtors that the balance amount of money was not tendered within the time fixed by the decree. The executing court was, therefore, directed to pass a fresh order after considering the evidence that may be produced by the parties. It appears that after the matter was remitted back to the executing court the impugned order was passed whereby the parties have been directed to adduce evidence on the readiness and willingness of the Decree-holders. The executing court was, therefore, directed to pass a fresh order after considering the evidence that may be produced by the parties. It appears that after the matter was remitted back to the executing court the impugned order was passed whereby the parties have been directed to adduce evidence on the readiness and willingness of the Decree-holders. The operative portion of the impugned order is quoted herein below:- "Hence it is hereby ordered that the parties may adduce evidence if any on the readiness and willingness of the Decree-holders to pay the balance consideration amount since the date of decree till the date of actual payment." 3. I have heard Mr. S.S. Dwivedi, learned senior Counsel appearing on behalf of the petitioners and Mr. S.S. Nayyar Hussain, learned counsel appearing on behalf of the opposite parties. 4. From perusal of the record it appears that the suit was instituted in the year 1977 and the decree for specific performance of contract was passed by the appellate court in the year 1982 and the litigation is going on for the last 22 years. I, therefore with consent of the parties dispose of this application not only deciding the propriety of the impugned order but also the objection raised by the judgment-debtors-Opposite parties under section 47 of the Code of civil procedure. 5. Before appreciating the objection raised by the judgment-debtors-Opp. parties with regard to the execution of the decree it would be worth to look into section 28 of the Specific Relief Act which reads as under:- "28(1) where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not within the period allowed by the decree or such further period as the court may allow, pay he purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such an application the court may, by order rescind the contract either so far as regards the party in default or altogether, as the justice of the case may require. (2) Where a contract is rescinded under subsection (1), the Court (a) Shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee untill restoration of possession to the vendor or lessor, and, if the justice of the case so requires the refund of any sum paid by the vendee or lessee as earnest money or deposit In connection with the contract. "(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in subsection (1) the court may, on application made in the same suit, award the purchaser or lessee such further relief as ha may be entitled to, including in appropriate cases all or any of the following relief’s, namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor: (b) the delivery of possession or partition and separate possession, of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this section shall lie at the Instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceeding under this section shall be in the discretion of the court," 6. From bare reading of the aforesaid provisions it is manifest that if a suit is decreed for specific performance of a contract for sale or lease of the immovable property and a decree specifically direct the purchaser or lessee to deposit the purchase money or other sum within the period allowed by the decree then in default by the purchaser or lessee, vendor or lessor may apply in the same suit in which the decree is & passed to have the contract rescinded and the court may by order rescind the contract or pass such order as the justice of the case may required. The reason behind this is that the decree for specific performance of a contract for sale has not the effect of extinguishing the contract of sale by merging it in the decree, Not with standing the decree the contract of sale is still treated as a subsisting contract and when the purchaser makes default by not paying the purchase money or other sum within the time allowed, therefore, by the court, it is open to the vendor to have the contract rescinded. 7. It is well settled that the court which passes a decree for specific performance of contract retains control over the decree even after the decree has been passed A court which had made a decree for specific performance and had by that decree fixed a time for the plaintiff to deposit the sale price, could extend the time subsequent to the decree, Specific performance being an equitable relief, he who seeks equity can be put on terms to ensure that equity is done to the opposite parties. It is equally well settled that when the purchaser is granted a decree for specific performance on condition of depositing the price within a given time, the decree may specify the consequence of default to be the rescission of contract. Where the decree is silent as to the consequences of default the purchaser may apply for extension of time and can execute the decree if extension is granted. The application for extension of time may be allowed even after expiry of time allowed by the decree. 8. In the light of the said proposition of law discussed herein above, now I shall proceed to examine the facts of the instant case. During the course of arguments learned counsel appearing on behalf of Opp. party no. 1 has not disputed the correctness of the submission made in the civil revision application with regard to the material facts. Moreover the facts stated in the Civil revision application has not been controverter by the Opposite party. As no iced above, the trial court dismissed the Suit on 30-6-1977 but the judgment and decree of the trial court was reversed by the First Appellate court in Title Appeal No 40 of 1977 in terms of the decree dated 1-9-1982. Moreover the facts stated in the Civil revision application has not been controverter by the Opposite party. As no iced above, the trial court dismissed the Suit on 30-6-1977 but the judgment and decree of the trial court was reversed by the First Appellate court in Title Appeal No 40 of 1977 in terms of the decree dated 1-9-1982. The suit was decreed with a direction to the defendant to execute and register the sale deed within the specific time after taking balance consideration amount of Rs. 1500/- from the plaintiff. The operative portion of the decree reads as under:- In view of my aforesaid discussions I find and hold that the judgment and decree of the lower court are fit to be set aside. The plaintiff is entitled to the specific performance of contract in respect of 2/3rd share of the original defendant washi and the present defendants who have been substituted in his place as heirs are bound by the same. The defendants are, therefore, directed to execute sale deed in respect to the 2/3rd share of the original defendant, which had been separated by the partition by the 3rd brother as admitted in the evidence within three months from the date of this order after taking Rs. 1500/- from the plaintiff, failing which the sale deed shall be executed by the court concerned according to law. The suit is thus decreed on contest against the contesting defendants with cost throughout. The appeal is, thus, allowed on contest, in the terms as pointed above. The pleader and pleader's clerk fee is allowed at Rs. 32/- and Rs. 5/- respectively." (Emphasis added). 9. From the aforesaid operative portion of the decree quoted above, it is clear that there was no specific direction to the plaintiff-Decree holders to deposit is Rs. 1500/- within three months from the date of the decree rather direction was to the defendant-vendor to execute the sale deed within three months after taking Rs. 1500/- from the plaintiff. Admittedly the judgment-debtors challenged the appellate court decree by filing Second appeal in the Court being second Appeal No. 443 of 1982 which was ultimately dismissed vide judgment and decree dated 31-7-1992 and the judgment and decree of the First appellate court was affirmed. 1500/- from the plaintiff. Admittedly the judgment-debtors challenged the appellate court decree by filing Second appeal in the Court being second Appeal No. 443 of 1982 which was ultimately dismissed vide judgment and decree dated 31-7-1992 and the judgment and decree of the First appellate court was affirmed. The judgment-debtors-opposite parties were even not satisfied with the decree and moved the Supreme Court by filing Special leave petition being SLP (civil) No. 16146 of 1993 which was dismissed at the stage of admission on 19-11-1993. 10. It appears that when the matter was pending in the Supreme Court the petitioners filed an application on 30-4-1993 in the trial court seeking permission to deposit Rs. 1500/-, that application was remained pending for so many years and ultimately it was allowed by the trial court in terms of the order dated 6-4-1996 whereby the petitioners were allowed to deposit the money by 12-4-1996. Accordingly, the money was deposited on 10-4-1996. In support of this fact the petitioners have enclosed a copy of the Order passed by the trial court and also a copy of the chalan. In the mean time the petitioners filed execution case and prayed the court to direct the judgment debtors-opposite parties to execute the sale deed in terms of the decree. 11. Having regard to the facts of the case and the documentary evidence discussed herein above, I am of the opinion that no further evidence was required to be adduced by the parties for deciding the objection raised by the Judgment-debtors-opposite parties with regard to the execution, discharge and satisfaction of the decree. After considering the facts and the evidence on record and after hearing the parties I come to the following conclusions:- (I) There was no specific direction in the decree passed in appeal for deposit of money by the Decree-holders. Rather direction was to the defendant to execute sale deed within three months after taking balance amount of Rs. 1500/- from the plaintiffs-decree-holder. (II) Even assuming that the plaintiff was required to deposit the money within three months, there was no consequence provided in the decree for default in the deposit of the money. (III) The judgment-debtor-opposite parties since the date of decree till the dismissal of the special leave petition by the Supreme court never asked the plaintiff to pay the balance amount to enable them to execute the sale deed. (III) The judgment-debtor-opposite parties since the date of decree till the dismissal of the special leave petition by the Supreme court never asked the plaintiff to pay the balance amount to enable them to execute the sale deed. Rather instead of complying the direction passed in the appellate decree the defendants chosen to move this Court and the supreme court. 12. On the basis of the conclusion arrived at by me I am of the definite to opinion that the objection raised by the judgment-debtors-opposite parties that the decree has become in-executable, has got no substance. As noticed above, the specific performance being an equitable relief, he who seeks equity can be put on terms to ensure that the equity is done to the opposite party, In the facts of the instant case, I am of the view that since money was allowed to be deposited by the trial court and the Decree holders deposited the amount, the decree is liable be executed and the judgment debtors-opposite parties are bound to execute the sale deed. 13. Regard being had to the discussions made haring above this application is allowed and the impugned order passed by the court below is set aside. The objection raised by the judgment debtors-opposite parties under section 47 of the code of Civil Procedure is, accordingly, rejected. The Court below is directed to execute the decree in accordance with law.