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2010 DIGILAW 3070 (MAD)

N. v. S. M. Anandvale VS K. T. Santhanakrishnan

2010-07-26

G.RAJASURIA

body2010
Judgment Inveighing the order dated 210. 2004, passed in I.A.Nos.5180 and 6296 of 2003 and 10407 of 2004 respectively in O.S. No. 5231 of 1998 on the file of the XIII Asst. Judge, City Civil Court, Chennai, these civil revision petitions are focused. 2. Heard both sides. 3. Broadly but briefly, narratively but precisely the relevant facts absolutely necessary and germane for the disposal of these three revisions would run thus: (i) The revision petitioner filed the suit O.S.No.5231 of 1998 seeking specific performance of agreement to sell. After contest, the Court passed the compromise decree on 13. 2001 as per clauses 4 and 5 of the memo of compromise, which would run thus: “Clause 4: The 1sr defendant has to execute the sale deed on the stamp papers furnished by the plaintiff and the entire registration expenses have to be borne by the plaintiff. The 1st defendant has to execute the sale deed in favour of the plaintiff or his nominee within two months from this date. The balance of sale consideration will be paid be fore the Sub Registrar at time of registration. Clause 5: If the 1st defendant fails to execute and register the sale deed within the aforesaid period, the plaintiff shall deposit the balance of sale consideration into Court and the document can be executed through Court.” (ii) The compromise decree passed is as under: “(i) That on payment of balance sale consideration of Rs.1,30,500/- by the plaintiff before the Sub Registrar, the 1st defendant on or before 15. 2001 do convey, execute and register at the costs of the plaintiff, the deed of sale conveying to the eastern half of the suit property described in the schedule hereunder and marked RED in the plan annexed with the compromise memo; .(ii) that in the case of 1st defendant failing to execute and register the sale deed as per clause (i) supra, the plaintiff be at liberty to apply to Court for a deed of sale being executed in favour of the plaintiff in respect of the property mentioned in the schedule hereunder; (iii) that the 1st defendant shall retain the original sale deed of the suit property described in the schedule hereunder and the registration copy of the same shall be given to the plaintiff; .(iv) that there be no costs in this suit; and .(v) that the memo of compromise do form part of the decree.” (iii) Thecontention of the defendant/Santhanakrishnan was that within the time stipulated in the compromise decree as well as in the compromise memo, the plaintiff failed to pay the requisite amount, whereupon the decree became inoperative. Subsequently I.A.No.5180 of 2003 was filed by the plaintiff to get the decree amended with the following prayer: “To amend the decree to make it in conformity with the judgment.” (iv) Subsequently, during the pendency of that, one other I.A.No.6296 of 2003 was filed by the defendant invoking Section 28 of the Specific Relief Act with the following prayer: “To rescind the contract dated 21. 1980 being the subject matter in the above suit” .(v) The revision petitioner also filed yet one other I.A. No.10407 of 2004 seeking permission to deposit the balance amount to the credit of the suit, so to say after three years and three months from the date of the compromise decree. The Court heard all the three applications together and by common order dated 210. 2004 allowed the application filed by the defendant invoking Section 28 of the Specific Relief Act, thereby the agreement to sell itself was rescinded, whereas, the other two applications filed by the revision petitioner were dismissed. 4. Being aggrieved by and dissatisfied with the orders passed in all the three applications, these three revisions have been filed more or less on one and the same set of grounds. 5. 4. Being aggrieved by and dissatisfied with the orders passed in all the three applications, these three revisions have been filed more or less on one and the same set of grounds. 5. Thepoints for consideration would be as under: .(1) Whether any amendment to the compromise decree is warranted on the ground that it has not got incorporated in the operative portion of the decree reflecting the true spirit of the compromise memo filed by both parties? .(2) Whether the preference of the revisions as against the order passed by the lower Court invoking Section 28 of the Act is an appealable or revisionable one? .(3) Whether there is any ground for extending the time for deposit of the amount as contemplated in the compromise decree by the Court? Point No. 1: 6. In respect of point No.1, the learned senior counsel for the plaintiff would submit that the compromise decree passed failed to reflect the true spirit of the memo of compromise and it has been projected in the decree as though the duty was cast upon the plaintiff to contact the defendant at the first instance and impliedly it connotes and denotes as though the defendant could be passive and remain silent. Accordingly, canvassing the aforesaid point, the learned senior counsel for the plaintiff prays for ordering modification of the compromise decree, by setting aside the order of the lower Court in the application concerned. 7. Whereas, the learned counsel for the defendant would submit that absolutely there is nothing wrong in the decree passed by the lower Court as in the compromise decree, all the features incorporated in the memo of compromise got reflected in the decree and no amendment is required. 8. At this juncture, I recollect and call up the trite proposition law that a decree and more specifically a, compromise decree has to be read conjunctively so to say only in conjunction with the memo of compromise and accordingly understood. In the case of ordinary decree, whenever there is any doubt, one will be referring to the judgment because a decree should be in consonance, in pari materia, in alignment with the judgment pronounced. However, in the case of compromise decree, there could be no reasoned judgment passed by the trial Court and in such a case, one has to refer only to the memo of compromise. However, in the case of compromise decree, there could be no reasoned judgment passed by the trial Court and in such a case, one has to refer only to the memo of compromise. Here, the lower Court took pains to add a clause also to the effect that the memo of compromise shall from part and parcel of the compromise decree itself. Hence, in such a case I could see no reason for amending the decree and the Executing Court while interpreting the decree can very well place reliance on the clauses in the memo of compromise itself and accordingly, interpret the decree. No party can have a right to say that the clauses in the memo of compromise should not be seen and only the operative portion as understood by the Court and incorporated in the decree alone should be considered. As such, I am of the considered view that there could be no difficulty at all in pressing into service the clauses in the memo of compromise in any of the allied proceedings. Accordingly, I could see no merit In C.R.P. No. 1273 of 2006 and no interference with the order of the lower Court is required and the same stands dismissed. Point Nos. 2 and 3: 9. The learned senior counsel for the revision petitioner placing reliance on the decision of this Court in Narasimhan v. Balammal (1998) 2 MLJ 1995 would develop his argument to the effect that earlier this Court in similar matter entertained revision and in such a case, this Court also could entertain these revisions. Whereas, the learned counsel for the defendant would submit that if the application under Section 28 of the Specific Relief Act is allowed, then there (sic) emerges a decree rescinding the very agreement to sell itself and it is quite obvious that from any decree, appeal would lie as per Section 96 C.P.C. read with Order 41 Rule 1 of C.P.C, but on the other hand, if such an application is dismissed, then alone the question of filing revision would arise. I would like to agree with the view expressed by the learned counsel for the defendant. I would like to agree with the view expressed by the learned counsel for the defendant. In fact, the decision of this Court in Narasimhan v. Balammal (supra) as cited by the learned senior counsel for the revision petitioner was relating to a case where the petition under Section 28 of the Specific Relief Act was dismissed and whereupon, revision was filed and the said case was not relating to a case where application under Section 28 of the Specific Relief Act was allowed. 10. At this juncture, it is worth and necessary to refer to the definition of decree as per Section 2(2) of C.P.C. and the same is extracted here under: “2(2) “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include – (a) any adjudication from which an appeal lies as an appeal from an order, or (b)any order of dismissal for default.” The ingredients of decree would run thus: A “decree” has to have the following essential elements, namely: (1) There must have been an adjudication in a suit (ii) the adjudication must have determined the rights of the parties in respect of, or any of the matters in controversy, (iii) such determination must be a conclusive determination resulting in formal expression of the adjudication. 11. I would also incidentally like to refer to the decision of the Hon’ble Apex Court in Kumar Dhirendra Mullick and Others v. Tivoli Park Apartmente (P) Ltd. (2005) 9 SCC 262 : (2005) 2 MLJ 65 cited by the learned senior Counsel for the revision petitioner himself, wherein the facts are that on the rescission of the agreement to sell under Section 28 of the Special Relief Act, there arose an appeal and not a revision. Section 28 of the Specific Relief Act is reproduced hereunder for ready reference: “28.Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.– .(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 the 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 application the Court may, by order, rescind the contract either so for as regards the party in default or altogether, as the justice of the case may require. .(2) Where a contract is rescinded under sub-section (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 until 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 sub-section (1), the Court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, 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. .(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) Thecosts of any proceedings under this Section shall be in the discretion of the Court.” 12. A mererunning of the eye over it would display and demonstrate, evince and evidence that a significant right is expected to be decided under Section 28 of the Act. It also presupposes the dictum as found enunciated in catena of decisions that the judgment passed in a specific performance suit is only in the nature of a preliminary decree and by passing the decree, the Court does not lose its jurisdiction over the matter or it does become functus officio on passing such decree. If there is default on the part of the plaintiff, the defendant is given the right to approach the Court under Section 28 of the Act for getting not only the preliminary decree erased but also the very root of the preliminary decree, namely the very agreement to sell. Such right relating to cause of action itself once decided under Section 28 of the Act by the rescinding the very agreement, undoubtedly it would amount to decree of the Court over which the appeal would lie. As such, I am of the considered opinion that the revision filed as against the order passed under Section 28 of the Act is an appealable one as it is a decree and only the appellate court in this case, which happens to be the Additional City Civil Court shall deal with the matter. Then the question might arise as to what would happen to their application seeking permission to deposit the amount. Wile deciding the appeal relating to Section 28 of the Act, necessarily the right of the plaintiff to get extended the time which was prayed and rejected by the lower Court also would arise and in my opinion, they become two sides of a coin, so far as this case is concerned, in view of its peculiar circumstances. Wherefore, the appellate Court has to decide the matter relating to extension of time also while deciding the matter which has arisen out of invocation of Section 28 of the Specific Relief Act. Wherefore, the appellate Court has to decide the matter relating to extension of time also while deciding the matter which has arisen out of invocation of Section 28 of the Specific Relief Act. In the interest of justitia pie ponderous and to avoid multiplicity of proceedings, I would like to return the C.R.P.Nos.1274 and 1275 of 2006 to the revision petitioner who shall represent the same before the appellate forum concerned on or before 8. 2010, whereupon, the appellate Court shall treat C.R.P.No.1274 of 2006 as appeal before it and the C.R.P.No.1275 of 2006 as I.A. in that appeal and accordingly, both the matters shall be heard together and disposed of within a period of two months from the date of receipt of a copy of this order. 13. The learned counsel for the defendant would correctly point out that while my learned Predecessor was hearing the matter, pay order sent in a cover to the plaintiff was presented before him and in the presence of my learned Predecessor that was opened and seen. Since the CRPs are disposed of with the above direction,, the said cover with the pay order shall be returned to the learned counsel for the plaintiff. Accordingly, C.R.P.No.1273 of 2006 is dismissed and C.R.P.Nos.1274 and 1275 of 2006 are disposed of. No costs. Consequently, connected miscellaneous petitions are closed. Petitions dismissed.