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2010 DIGILAW 1940 (PNJ)

Gajender Singh v. Jain Chand

2010-07-05

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. Gajender Singh-Judgment Debtor No.2 has filed the instant revision petition under Article 227 of the Constitution of India assailing orders Annexures P-3 and P-4 both dated 25.05.2010 passed by learned Executing Court i.e learned Additional Civil Judge (Senior Division), Loharu. Vide order Annexure P-4, objections filed by petitioner-JD No.2 have been dismissed and, therefore, vide order Annexure P-3, Commissioner has been appointed to execute sale deed pursuant to decree for specific performance of the agreement to sell. 2. Respondent No.1-Jai Chand-decree-holder had filed suit for specific performance of the agreement executed by JD No. 1 Jagram (respondent No.2 herein). Sale deed executed by respondent No.2 in favour of the petitioner was also challenged. Trial Court decreed suit vide judgment and decree dated 05.09.2002 directing the plaintiff-decree- holder to get the sale deed executed in his favour on payment of balance sale consideration of Rs.34000/- to defendant No.l within two months from the date of judgment, failing which, the plaintiff would be entitled to get the sale deed executed through Court.. First appeal preferred by the petitioner was disposed of by first Appellate Court vide judgment and decree dated 09.12.2005 by modifying the judgment and decree of the trial Court. According to decree of lower appellate Court, sale deed in favour of the petitioner was set aside to the extent of 6 Bighas 8 biswas land which was the land in suit as per agreement, although the sale deed in favour of the petitioner was for 7 Bighas 19 Biswas. Lower Appellate Court did not specify any period for payment of the balance sale consideration by the decree-holder. The petitioner also preferred second appeal, which was dismissed by this Court on 29.03.2007. 3. The petitioner alleged in his objections Annexure P-1 that since the decree-holder did not deposit the balance sale consideration within period of two months stipulated by the trial Court, the execution petition is not maintainable and is liable to be dismissed. 4. The objections were opposed by the decree-holder by filing reply Annexure P-2. It was inter alia pleaded that the lower Appellate Court did not specify any period for payment of balance sale consideration and there was no default by the decree-holder. 5. Learned Executing Court vide impugned order Annexure P-4 dismissed the objections filed by the petitioner. 4. The objections were opposed by the decree-holder by filing reply Annexure P-2. It was inter alia pleaded that the lower Appellate Court did not specify any period for payment of balance sale consideration and there was no default by the decree-holder. 5. Learned Executing Court vide impugned order Annexure P-4 dismissed the objections filed by the petitioner. The Executing Court vide impugned order Annexure P-3 appointed Commissioner for execution of sale deed as per decree. Feeling aggrieved, JD No.2 has preferred the instant revision petition. 6. I have heard learned counsel for the petitioner and perused the case file. 7. Learned counsel for the petitioner vehemently contended that the trial Court had specified period of two months for payment of balance sale consideration by the decree- holder and the said period was not modified by the lower appellate Court. It was also contended that even if no period is specified for performance of the contract, still it must be implied that it is to be performed within a reasonable time. Support for this contention is sought to be drawn from judgment of Honble Supreme Court in the case of Hungerford Investment Trust v. Haridas Mundhra and others, AIR 1972 Supreme Court Cases 1826. It was also contended that if the balance sale consideration is not depsited within specified period, the vendor gets entitled to seek rescission of the contract. In support of this contention, reliance has been placed on a judgment of this Court in the case of Bhupinder Kumar v. Angrej Singh, (2007-3) 147 P.L.R. 580. 8. I have carefully considered the aforesaid contentions, but find no force therein. The period of two months was specified by trial Court for payment of balance sale consideration by the decree-holder to defendant No.l, but even the trial Court did not specify that on failure to do so, the suit shall stand dismissed. On the other hand, the period of two months was specified for defendant No.l to execute the sale deed, failing which the plaintiff was held entitled to get the sale deed executed through Court. In this view of the matter, there is no occasion for rescission of the contract. 9. In addition to the aforesaid, the decree of the trial Court merged in the decree of the lower Appellate Court. Lower Appellate Court did not specify any period for payment of balance sale consideration by the decree-holder. In this view of the matter, there is no occasion for rescission of the contract. 9. In addition to the aforesaid, the decree of the trial Court merged in the decree of the lower Appellate Court. Lower Appellate Court did not specify any period for payment of balance sale consideration by the decree-holder. For this reason as well, the objections filed by the petitioner cannot be allowed. 10. The matter does not rest here. The petitioner had preferred second appeal which was dismissed on 29.03.2007. Decree-holder filed execution petition on 18.09.2007 i.e without any unreasonable delay. In the execution petition, the decree-holder specifically prayed that the sale deed be got executed and registered in his favour on payment of balance sale consideration. Thus, in the execution petition, the decree-holder specifically prayed that he was ready to pay the balance sale consideration and sale deed be got executed and registered in his favour as per decree on payment of the balance sale price. For this reason as well, the execution petition cannot be said to be not maintainable. Judgment in the case of Hungerford Investment Trust (supra) is not applicable because in the instant case, the decree-holder filed execution petition within reasonable time, offering to pay the balance sale consideration as per decree. Judgment in the case of Bhupinder Kumar (supra) is also not applicable because in that case, the decree specified that balance sale consideration will be paid within three months, but the decree- holder filed execution petition more than 2 1/2 years after the passing of the decree and applied for extension of time for deposit of the balance sale consideration. Thus, both the aforesaid judgments are not attracted to the facts of the present case. 11. In addition to the aforesaid, it is significant to notice that the petitioner has no locus standi to raise the objection of nondeposit of balance sale consideration within the stipulated period because the amount was not payable to the petitioner. On the other hand, the amount as per decree is payable to respondent No.2- Jagram and not to the petitioner. 12. For the reasons recorded hereinabove, I find no merit in the instant revision petition because there is no illegality in the impugned orders of the Executing Court so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. 12. For the reasons recorded hereinabove, I find no merit in the instant revision petition because there is no illegality in the impugned orders of the Executing Court so as to warrant interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is, accordingly, dismissed in limine.