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2010 DIGILAW 470 (KAR)

Y. M. SHAILAJA v. C. RAMANJANEYA

2010-04-05

B.S.PATIL

body2010
ORDER In this writ petition, petitioner-judgment-debtor is challenging the order passed by the Executing Court dismissing the application filed under Section 28 of the Specific Relief Act, 1963 (for short, 'the Ace). 2. The application was filed by the judgment-debtor-petitioner herein seeking to rescind the sale agreement dated 12-1-2004 on the ground that the decree-holder had failed to deposit the balance sale consideration of Rs. 6,69,500/- within three months as directed while decreeing the suit. The said application was resisted contending that there was no bona fides on the part of the petitioner in filing the said application and that the same was filed with a mala fide intention to protract the proceedings. It was also contended that the provisions of Section 38 of the Act could not be invoked in such circumstances. 3. The case of the decree-holder was that no such positive direction was issued against him in the judgment and decree passed on 24-2-2007 to deposit the amount. On the other hand, the direction was against the judgment-debtor to receive the balance sale consideration amount on or before 24-5-2007 and to execute the sale deed. 4. The Executing Court has dismissed the application holding that the power conferred under Section 28 of the Act is discretionary and the Court cannot ordinarily annual the decree by recourse to Section 28 of the Act. It has found on the facts of the case that in the original suit O.S. No. 385 of 2005, by the judgment and decree dated 24-2-2007 while decreeing the suit for specific performance filed by the decree-holder respondent herein, the Court had directed the defendant to execute the sale deed by receiving the amount within three months from the date of decree that is within 24-5-2007. The plaintiff sought for issue of receipt order for depositing the balance sale consideration of Rs. 6,60,500/- on 28-5-2007 and the Trial Court issued the receipt order, pursuant whereof the decree-holder has deposited the amount towards the balance sale consideration, which disclosed that the Trial Court had in fact entertained the request made by the plaintiff for depositing the amount and granted necessary permission. The Trial Court has also found that issuance of receipt order amounted to grant of permission. 5. The Trial Court has also found that issuance of receipt order amounted to grant of permission. 5. Learned Counsel Sri Kantharaj, taking me through Section 28 of the Act contends that as the plaintiff-decree-holder has failed to deposit the amount of sale consideration within the time fixed by the Court below, the defendant-judgment-debtor is entitled to seek rescission of the contract and it is in this background the application was made before the Court below and the Court below was not right and justified in rejecting the same holding that there was deemed permission. 6. In the light of the contention raised by the Counsel for the petitioner and on perusal of the materials on record, I find that the contention put forward by the petitioner cannot be accepted. First of all, the direction contained in the decree which is extracted in para 6 of the order impugned shows that there is no specific express direction issued to the plaintiff to pay the amount on or before a particular date. In fact, the direction is issued in such a manner that it was the 1st defendant who was directed to execute the sale deed by receiving the amount on or before 24-5-2007. Secondly, even assuming that the direction issued to the defendant tantamounts to a direction issued to the plaintiff, as no sale deed can be registered unless the plaintiff deposits/pays the full sale consideration, the fact remains that a party who has suffered the decree for specific performance can avail the benefit under Section 28(1) of the Act by making an application in the same suit in which the decree is passed by bringing it to the notice of the Court that the plaintiff had failed to pay the amount as ordered by the Court below within the time prescribed in the decree. In the instant case, the defendant does not make any such application in the suit. He keeps quiet without making any grievance regarding the non-payment/deposit of the balance sale consideration by the plaintiff-decree-holder. It is only after the execution proceedings are instituted, she appears in the execution proceedings and files the present application requesting the Court to rescind the contract. This application is made on 15-4-2008. As can be seen from the impugned order, the plaintiff deposited the amount by obtaining the receipt order on 28-5-2007 in a sum of Rs. 6,60,500/-. It is only after the execution proceedings are instituted, she appears in the execution proceedings and files the present application requesting the Court to rescind the contract. This application is made on 15-4-2008. As can be seen from the impugned order, the plaintiff deposited the amount by obtaining the receipt order on 28-5-2007 in a sum of Rs. 6,60,500/-. Nearly after one year after such deposit and after the institution of the execution proceedings, the judgment-debtor files this application seeking rescission of contract involving Section 28 of the Act. Provisions of Section 28 cannot be invoked under such circumstances. The fact, that the Court which passed the decree, has granted permission to the plaintiff to deposit the amount by directing issue of receipt order on 28-5-2007, itself clearly shows that though the registered sale deed was required to be executed on or before 24-5-2007, on receipt of the balance consideration the plaintiff approached the Court fairly within a matter of three days thereafter and sought for depositing the balance amount of Rs. 6,60,500 and accordingly the receipt order was issued. If at all, it was the default on the part of the plaintiff as contained and contemplated under Section 28 of the Act in paying the amount, nothing prevented the defendant from making necessary application in the suit immediately. She has kept quiet for nearly one year after the amount was deposited and has come up with this application in the execution proceedings after the Executing Court called upon her to execute the decree. 7. Hence, I do not find any merit in this writ petition. The order passed by the Executing Court does not suffer from any apparent illegality or error of jurisdiction so as to warrant interference in exercise of the writ jurisdiction. Hence, the writ petition is dismissed.