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2000 DIGILAW 113 (HP)

HARINDER MOHAN CHADHA v. MOHINDER KUMAR & COMPANY

2000-05-20

SURINDER SARUP

body2000
JUDGMENT Surinder Sarup, J.:- This order would dispose of the above application, OMP No. 97 of 1991, which has arisen out of Civil Suit No. 62 of 1987, which was disposed of by a consent decree of this Court dated 12th August, 1987. 2. Briefly, the facts are that the applicant had filed a suit for specific performance with, regard to the §ale of property covered by agreement to sell dated 10.6.1987 against the defendants in respect of the property described as "Upper Portion of Chopra Orchard i.e. the portion on the upper (left) Bank of Kullu-Manali road on the 13Kms. post situated at village Raison, Tehsil and District Kullu measuring approximately 26 Biglias 15 Biswas. 3. The terms of the agreement to sell between the parties dated 10.6.1987 contained a memorandum to the said agreement to sell to which the defendants-Mohinder Kumar and Company were parties. It is clearly spelt out in the said memorandum that an agreement of the said date has been entered into between! the parties for the sale by the defendant of upper portion of their chopra orchard situated in village Raison, as mentioned above, to the plaintiff. It is further stipulated therein that the aforesaid upper portion of Chopra Orchard is comprised of 25 Bighas 08 Biswas of registered ownership bearing Khasra Nos. 450 to 455, 457, 458, 469 and 1440/1227, as well as Kastkari land measuring 6 Bighas 15 Biswas bearing Khasra Nos. 447 to 450, and 1443/1228, in all 32 Bighas 03 Biswas. 4. Since the sale deed was not executed, which gave rise to the filing of the above suit, which was ultimately compromised and the decree compromise on the following terms and conditions: "1. The plaintiff will deposit the balance sale consideration of Rs.13,00,000/- in a separate saving bank account to be opened in the name of M/s. Mohinder Kumar and Company (defendant No. 1) with United Commercial bank, Model Basti Branch at New Delhi on or before August 19, 1987. Defendant No, 1 would not be, however, entitled to draw any amount from this account till the registration of the sale deed and further till specific orders to that effect are obtained from this court. The bank would be under an obligation to ensure that this account is not operated in any manner till specific orders are obtained and conveyed to the bank; I 2. The bank would be under an obligation to ensure that this account is not operated in any manner till specific orders are obtained and conveyed to the bank; I 2. The possession of the property in dispute would be delivered to the plaintiff on or before August 22, 1987. The defendants agree not to harvest any fruit from the orchard henceforth; 3. The defendants would take immediate steps to procure income tax clearance certificate to enable them to execute registered sale deed. The sale deed would be executed at Kullu and the plaintiff would pay the stamp duty registration charges and other expenses for the purpose of execution of the sale deed; and 4. Immediately after the execution of the sale deed, the defendants would be entitled to apply to this court and obtain directions to the United Commercial Bank, Model Basti, New Delhi branch for withdrawing/operating the account of Rs.13,00,000/-. It is further agreed between the parties that the defendants would also be entitled to obtain the aforesaid directions of the Court to the bank in case there is any unforeseen difficulty in getting the sale deed executed but subject to the condition that the income tax clearance certificate is duly obtained." 5. In the said decree, it was specifically stated that the plaintiffs suit, as prayed for, is hereby decreed subject to the above terms and conditions leaving the parties to bear their own costs. 6. The instant application has been filed with the prayer for ordering the judgment debtors-defendants to execute the sale deed and to get it registered before the Sub Registrar, Kullu in terms of the said decree. It has been stated therein that pursuant to the aforesaid terms, the plaintiff deposited a sum of Rs.13 lacs in Saving Bank Account with the United Commercial Bank, Model Basti Branch, New Delhi before the agreed date and in terms of condition No. 1 of the compromise decree, the possession of the property was delivered to the plaintiff on 25.8.1987. According to the plaintiff/applicant, in terms of the decree Khasra Nos. 1440/1227 and 1443/1228 i.e. upper portion of the Chopra Orchard bifurcated by the Kullu-Manali road and covered by the barbed wire fencing was also included. Since the defend ants/judgment debtors on being asked to execute the sale deed in the above terms had not done so, hence the present application.; 7. 1440/1227 and 1443/1228 i.e. upper portion of the Chopra Orchard bifurcated by the Kullu-Manali road and covered by the barbed wire fencing was also included. Since the defend ants/judgment debtors on being asked to execute the sale deed in the above terms had not done so, hence the present application.; 7. Notice of the application having been issued to the defendants/judgment debtors, they have put in appearance through their learned Counsel and filled a reply-cum-objection to the application. By way of preliminary objection, it has been stated that the application as laid is neither competent nor maintainable, and that the plaintiff-applicant has suppressed true and material facts from this Court. On merits, it has been admitted that pursuant to the decree, the plaintiff/applicant deposited the requisite amount. It has also been admitted that the possession was delivered to him by the defendants on 25.8.1987. Report regarding such delivery of possession was given to the Patwari, who made the entry in the revenue record on the basis of the same, copy of which is Annexure R-l to the reply. It has been further stated that the plaintiff/applicant executed a receipt of delivery of physical possession of 13 plots of land, total measuring 26 Bighas 15 Biswas, copy of the receipt has been annexed with the reply as Annexure R-2. 8. In paragraph 4 of the reply, on merits, it has been denied that Khasra Nos. 1440/1227 and 1443/1228 i.e. upper portion of Chopra Orchard bifucated by Kullu-Manali road and covered by the barbed wire fencing was also pan of the compromise decree. These Khasra Numbers were never agreed to be sold to the plaintiff/applicant and were not the subject matter of the decree. 9. The plaintiff/applicant has filed a replication to the reply in which he has controverted the stand taken therein. It has been stated that possession of Khasra Nos. 1440/1227 and 1443/1228 i.e. upper portion of the Chopra Orchard bifurcated by Kullu-Manali road was also given, but by inadvertent omission these Khasra numbers were not mentioned in the report. In fact the suit was decreed for 32.03 Bighas. A memorandum was prepared by the judgment debtors themselves before filing of the suit in which they had mentioned these two Khasra numbers also. A copy of the same has been annexed with the replication. 10. Learned Counsel for the parties have been heard. In fact the suit was decreed for 32.03 Bighas. A memorandum was prepared by the judgment debtors themselves before filing of the suit in which they had mentioned these two Khasra numbers also. A copy of the same has been annexed with the replication. 10. Learned Counsel for the parties have been heard. It is clear from the record that what was agreed to be sold by the defendants to the plaintiff was upper portion of Chopra Orchard comprising the above mentioned described land in two lots total measuring 32.03 Bighas. Moreover, the prayer in the suit was for a decree for specific performance with regard to the sale of property described as upper portion of Chopra Orchard i.e. the portion situated on the upper (left) bank of Kullu-Manali road on 13 Kms post situated at village Raison, Tehsil and District Kullu shown to be measuring approximately 26 Bighas 15 Biswas plus such other land, which is ecircled under the barbed wire fencing... (emphasis supplied). The decree which passed by this Court on 12.8.1987 categorically provided that the plaintiffs suit, as prayed for, is hereby decreed subject to the above terms and conditions. Admittedly, the defendants-objectors were party to the memorandum to the agreement to sell, wherein it was provided that upper portion of the Chopra Orchard is comprised of Khasra numbers described above and two Khasra numbers in dispute herein, namely, Khasra Nos. 1440/1227 , and 1443/1228. This being the factual position, and the consent decree having been passed, as prayed for, in the suit of the plaintiff, it does not lie in the mouth of the defendants/objectors now to turn around and state that I these two. Khasra numbers were not compressed in the upper portion of Chopra Orchard bifurcated by Kullu-Manali road and covered by the barbed wire fencing. Their plea in the reply to the effect that the said two khasra numbers were never part of the agreement, and the subject- matter of the decree, is also not tenable. In view of what has been stated above, they are bound by the consent decree passed on the compromise of the parties by this Court on 1-2.8.1987. . 11. Their plea in the reply to the effect that the said two khasra numbers were never part of the agreement, and the subject- matter of the decree, is also not tenable. In view of what has been stated above, they are bound by the consent decree passed on the compromise of the parties by this Court on 1-2.8.1987. . 11. Faced with the above situation, the learned Counsel for the defendants/objectors has argued that the application after the" passing of the decree is not maintainable under Order 21 Rule 32 of the code of Civil Procedure, which is the provision quoted in the heading of the application. According to the learned Counsel, the application should have been moved under Sections 151 and 152 of the Code of Civil Procedure. Be that as it may, it is by now well settled law that while deciding a matter pertaining to the lis inter parties in a given case, the Court should not go merely by the form of pleadings, but has to interpret and see the substance thereof. Construed thus, there is no bar to deal with the present application as being one under Sections 151 and 152 of the code of Civil Procedure in order to ensure that substantial justice according to law is done in the present case and the defendants/objectors do not unduly benefit by taking shelter behind technical objections. 12. For the reasons recorded above, this application is allowed. The defendants/non-applicants are directed to execute the sale deed in terms of the consent decree passed on the compromise of the parties by this Court on 12.8.1987, so as to include Khasra No. 1440/1227 and 1443/1228 as part of the land sold by them to the plaintiff under the agreement to sell dated 10.6.1987. In the circumstances of the case, there will be no order as to costs. Application allowed.