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1999 DIGILAW 41 (PAT)

Pratibha Singh v. Shanti Devi Prasad

1999-01-27

GURUSHARAN SHARMA

body1999
Judgment Gurusharan Sharma, J. 1. Heard the parties and with their consent, these two civil Revision applications are disposed of at the admission stage. 2. Title Suit No. 125 of 1981, filed by the plaintiffs-opposite parties against the defendants-petitioners on 16.9.1981 for specific performance of agreement was decreed on 18.10.1982. the defendants were directed to accept balance amount of consideration, under the agreement dated 30.11.1978 read with the agreement dated 4.9.1979 and to execute and register sale-deed of the suit land within a period of two months, failing which the plaintiffs were at liberty to get the decree executed through processes of Court. 3. It is said that the decree-holders tendered balance consideration amount and also sent a notice on 30.11.1982 in this regard to the judgment-debtors, but they did not respondent. On 24.1.1983, Execution Case No. 1 of 1983 was filed. 4. In the meantime, on 1.4.1983, the defendants preferred F.A. No. 27 of 1983 (R) in this Court, wherein by the order dated 13.4.1983 execution proceedings was stayed. The said appeal was dismissed on 4.4.1990 and L.P.A. No. 47 of 1990(R) filed thereafter was also dismissed on 17.10.1990. 5. Thereafter, S.L.P. No. 5061 of 1990 was filed in the apex Court, wherein an interim order dated 8.4.1991 was passed to maintain status-quo. After grant of leave, it was converted into Civil Appeal No. 3151 of 1992 and by order dated 18.8.1992, interim order dated 8.4.1991 was confirmed and continued till dismissal of the Civil Appeal No. 23.11.1995. The judgment-debtors even thereafter filed Review Petition No. 63 of 1996 in the apex Court, which was also dismissed on 7.2.1996. 6. In the meantime on 12.1.1996, the decree-holders filed a petition in the Executing Court for granting permission to deposit balance amount of consideration, which was allowed on 15.2.1996 and, accordingly on 23.3.1996, a sum of Rs. 37,001.00 was deposited in favour of the judgment-debtors. 7. On 13.5.1996, the judgment-debtors filed objection under Sec. 47 of the Code of Civil Procedure challenging executibility of the decree, which was registered as Misc. Case No. 2 of 1996. A rejoinder thereto was filed by the decree-holder on 24.9.1996. By order dated 15.3.1997, the said Misc. Case was dismissed. 8. The judgment-debtors thereafter on 31.3.1997, filed Misc. Case No. 1 of 1997, under Secs. Case No. 2 of 1996. A rejoinder thereto was filed by the decree-holder on 24.9.1996. By order dated 15.3.1997, the said Misc. Case was dismissed. 8. The judgment-debtors thereafter on 31.3.1997, filed Misc. Case No. 1 of 1997, under Secs. 114 and 151 and Order 47, Rule 1 of the Code of Civil Procedure to review the aforesaid order dated 15.3.1997. They also filed Misc. Case No. 2 of 1997 on 19.4.1997, under Secs. 14(b), 16(c) and 28 of the Specific Reliefs Act, for rescinding the agreements in question. The third Misc. Case No. 6 of 1997 again under Order 21, Rule 29 and Sec. 47 of the Code of Civil Procedure was filed by them on 26.8.1997. 9. The aforesaid three Misc. Cases were heard together and were dismissed by the impugned order dated 21.4.1998. The present Civil Revision No. 223 of 1998(R) has been filed against part of it, whereby Misc. Case No. 6 of 1997 was dismissed, whereas C.R. No. 224 of 1998(R) has been filed (sic) part of the said order, whereby Misc. Case No. 2 of 1997 was dismissed. 10. It is stated that on 30.4.1998 and 1.5.1998, the judgment-debtors also filed Misc. Case Nos. 9 and 14 of 1998 respectively before the Executing Court to review the orders dismissing Misc. Case Nos. 1 and 2 of 1997. A third Misc. Case No. 20 of 1998 was filed by them on 6.6.1998. However, it is said that on 23.12.1998, the sale-deed in question was executed by the Court. Cr. No. 223 of 1998(R) 11. According to the judgment-Debtors-petitioner, the boundaries of the suit land was neither given in the plaint nor in the decree nor in the execution petition and as such, it was inidentifiable. In the present case, the decree under execution is admittedly with respect to a part of the plot for which sketch map was already on record. It was alleged that even after passing of the decree in question the judgment-debtors were making constructions over the suit land and in such situation, this Court on 5.10.1989 in F.A. No. 27 of 1983 (R) ordered that construction, if any, shall not be carried on the suit land and if any construction was made, the same was made at the risk of the judgment-debtors-appellants therein and was always subject to result of the appeal. 12. 12. I find that question of vagueness of the suit, land was not raised in the written statement. It was raised for the first time in objection under Section 47 of the Code. In the counter-affidavit filed in injunction matter before this Court in F.A. No. 27 of 1983(R) on 3.10.1989, it was stated by the judgment-debtors clearly and specifically that they have kept eight kathas of the decretal land safe and intact without any encroachment whatsoever and would hand over to the decree-holders, in case their appeal-failed. 13. There was no vagueness in the description of the suit land and only a frivolous objection under Sec. 47 of the Code Was made. The provisions of Order 21, Rule 29 of the Code were not at all attracted in this case. 14. It appears that the judgment-debtors are in habit of raising objection of executability of the decree in question under different nomenclature repeatedly. The apex Court has deprecated practice of raising repeated objection of executability of decree in the garb of Sec. 47 of the Code. 15. The executing Court rightly dismissed Misc. Case No. 5 of 1997. There is no merit in C.R. No. 223 of 1998(R). C.R. No. 224 of 1998 (R) 16. According to the judgment-debtors-petitioners, for non-compliance of operative part of the judgment in suit, the decree became enforceable and inexecu table. The operative part of the judgment and decree in suit is quoted beiow: that the suit is decreed on contest with cost. The Pleaders fee of Rs. 36.00 and Pleaders clerks fee of Rs. 4.00 are also allowed. The defendants are directed to accept the balance amount of consideration money under the agreement dated 30.11.78 read with agreement dated 4.9.79 and are further directed to execute and register the sale-deed of the suit lands within a period of two months from the date of order, failing which the plaintiffs shall be at liberty to get it executed through the processes of the Court. 17. It is clear that direction was given only to the judgment-debtors to accept balance amount of consideration and execute sale-deed within two months and there was no specific direction to the decree-holders to deposit the balance amount by any particular date. However, on failure of the defendants to accept the same, the decree-holders were given liberty to get the decree executed through Courts processes. However, on failure of the defendants to accept the same, the decree-holders were given liberty to get the decree executed through Courts processes. It further appears that instead of accepting the balance consideration amount and executing the deed, the judgment-debtors went on filing appeals and obtaining orders of stay of execution proceedings. 18. Sec. 28 of the Specific Reliefs Act provides that in case a purchaser within the period allowed by the decree or such further period as the Court may allow, does not pay the purchase money, the vendor is at liberty to apply in the same suit, in which the decree is made to have the agreement rescinded and the Court on such application may rescind the same. 19. In the present case, it is said that he decree-holders tendered the balance consideration amount and even sent notice dated 30.11.1982 in this regard to the judgment-debtors, but the judgment debtors neither responded thereto nor ever asked the decree-holders to pay the balance amount to enable them to execute the deed. 20. After dismissal of Civil Appeal by the apex Court and even without waiting for disposal of review matter there, the decree-holders made a petition to the Executing Court, obtained permission and deposited the balance consideration amount on 23.3.1996. 21. In my opinion, since there was no specific direction to the decree-holders to deposit the balance amount of consideration by a particular date and the execution proceedings remain stayed on account of interim orders passed by the appellate Courts, it is not correct to say that the decree-holders failed to comply with any such direction of the trial Court and as such the provisions of Sections 14(b), 16(c) and 28 of the Specific Relief Act were not attracted herein. 22. Misc. Case No. 2 of 1997 was, therefore, rightly dismissed as not maintainable. There is no merit in C.R. 224 of 1998(R). 23. In the result, both C.R. Nos. 223 and 224 of 1998 (R) are dismissed with costs of Rs. 2,000.00 payable to the decree-holders-opposite parties. 24. The executing Court is directed to take every step in the matter so that possession of the suit land must be delivered to the decree-holders at the earliest.