Order: This Civil Revision Petition, under Article 227 of the constitution of India, is directed against the order dated 24.08.2007 passed in E.P.No.86 of 2005 in O.S.No.71 of 2002 by the Senior Civil Judge, Tadepalligudem, whereby and whereunder, the objections filed by the petitioner herein in the form of counter for execution of the decree were overruled. 2. While the petitioner herein was facing insolvency proceedings in I.P. No. 14 of 1990 on the file of the Subordinate Judge, Tanuku, the respondent herein, who is also the second respondent in the said insolvency proceedings, filed O.S. No. 71 of 1992 on the file of the Subordinate Judge, Tadepalligudem, for specific performance basing on the agreement of sale. The petitioner herein was set ex parte and an ex parte decree was passed in the said suit on 17.09.1992. The petitioner herein filed an application to set aside the ex parte decree passed against him. He also filed an application to condone the delay of 278 days in filing the said application. However, the said application was dismissed for default. The petitioner again filed another application to restore the same and the same is pending. 3. The I.P. No. 14 of 1990, filed against the petitioner, was allowed on 24.11.1998. The matter was carried in appeal and in appeal the order of the Insolvency Court was set aside in A.S. No. 4 of 1999 on the file of the IV Additional District and Sessions Judge (Fast Track Court), Tanuku. Meanwhile, the respondent filed E.P (SR) No.2394 of 1996 for execution of the decree in O.S. No.71 of 1992. However, an objection was raised that the E.P. was not maintainable for non-deposit of the remaining sale consideration amount and, therefore, the said E.P. was not pressed and consequently it was rejected on 17.07.2002. Subsequently, the respondent filed I.A. No. 302 of 2001 in O.S. No.71 of 1992 to condone the delay of 2928 days in depositing the balance of sale consideration amount. The said petition was allowed on 17.09.2002. Though the said order was challenged in revision in C.R.P. No.3124 of 2008 before this Court, but the said CRP was dismissed on 09.11.2009. Basing on the orders in I.A. No.302 of 2001, the respondent deposited the balance of sale consideration of Rs.20,000/- on 20.09.2002 and then filed the present E.P. No.86 of 2005. The petitioner herein raised several objections. Though the said order was challenged in revision in C.R.P. No.3124 of 2008 before this Court, but the said CRP was dismissed on 09.11.2009. Basing on the orders in I.A. No.302 of 2001, the respondent deposited the balance of sale consideration of Rs.20,000/- on 20.09.2002 and then filed the present E.P. No.86 of 2005. The petitioner herein raised several objections. His case was that summons were not served on him and that he filed an application to set aside the ex parte decree and the said application is pending and that the respondent had fraudulently obtained the decree without paying him the sale consideration amount and the endorsements on the agreement of sale Ex.A1 are not genuine and that there is inordinate delay in filing the E.P and that the E.P. was not maintainable. The lower Court, holding that the respondent had already filed I.A. No.302 of 2001 and that the delay in depositing the balance of sale consideration was condoned in the said application and that the earlier petition filed by the petitioner to set aside the ex parte decree was dismissed and therefore there are no valid objections raised by the petitioner, has passed the impugned order on 24.08.2007, which is under challenge in this revision. 4. Heard Sri S. Sreeramachandra Murthy, learned counsel for the petitioner and Sri P.V. Vidya Sagar, learned counsel for the respondent. Both the counsel have advanced elaborate arguments and cited several decisions in support of their contentions. 5. The points that arise for consideration in this revision are 1) Whether the application under Article 227 of the Constitution of India is maintainable without invoking the revisional jurisdiction? 2) When the defendant is set ex parte, whether the Court is not required to consider the plaint averments and the documents filed by the plaintiff and come to an independent conclusion whether the plaintiff is entitled for the decree basing on the material available on record? 3) Whether the acknowledgments made by the defendant with regard to part payment or adjustment of consideration amount which materially alter the earlier terms and conditions of the agreement of sale require registration? 4) Whether the respondent played fraud in obtaining the ex parte decree and consequently the entire proceedings are liable to be vitiated? 5) Whether the E.P is barred by limitation? POINT No.1: 6. 4) Whether the respondent played fraud in obtaining the ex parte decree and consequently the entire proceedings are liable to be vitiated? 5) Whether the E.P is barred by limitation? POINT No.1: 6. Learned counsel for the respondent submitted that the petitioner has approached this Court under Article 227 of the Constitution of India and when an alternate remedy of revision is available to him, he cannot approach the Court under Article 227 of the Constitution of India and, therefore, the petition is not maintainable. It is also his submission that the impugned order is dated 24.08.2007 and limitation starts running from the date of order and that this petition under Article 227 of the Constitution of India is preferred beyond the period of 90 days, therefore, not maintainable. He has relied on a decision reported in Gurram Satyaseshamamba @ Gurram Satya Santamani Vs. Gurram Krishnavenamma (died) by LRs1. He further submits that Article 227 of the Constitution of India is an extraordinary jurisdiction and the powers under Article 227 of the Constitution of India should not be exercised as if it were in appellate jurisdiction. He has relied upon judgment in the case between Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and others2 and would submit that after the amendment by Act 46 of 1999, the amended provision of Section 115 C.P.C., the revisions filed before the High Courts are not maintainable and when there is no power of revision, the petitioner could not have approached this Court under Article 227 of the Constitution of India. 7. The learned counsel for the petitioner, in reply, submits that the question of alternative remedy does not arise when a petition has been filed seeking remedy under Article 227 of the Constitution of India. He has relied on a decision reported in L. Hirday Narain Vs. Income-Tax Officer, Bareilly3. It is also his submission that notice before admission was issued to the respondent and that after hearing both the parties the revision was admitted and interim direction was given and once the revision is admitted the question of its maintainability at a subsequent stage does not arise. He has relied on a decision reported in Alagar @ Savugan, S/o Raman and another Vs. A. Baluchami, S/o Alagar and another4. He has relied on a decision reported in Alagar @ Savugan, S/o Raman and another Vs. A. Baluchami, S/o Alagar and another4. It is also submitted that when a manifest injustice has been done the Court can exercise the powers under Article 227 of the Constitution of India and the remedy under Section 115 CPC cannot be said to be an effective remedy. Reliance is placed on a decision reported in Surya Dev Rai Vs. Ram Chander Rao5. Referring to the amended provisions, it is submitted that Section 115 CPC has got three clauses and the words "in the interest of justice" have been deleted after the amendment and that the legislature wanted to cut short the litigation and therefore the petition under Article 227 of the Constitution of India is maintainable. It is also his submission that though alternative remedy is available the powers of the Court under Article 227 of the Constitution of India are wide and any error committed by the lower Court, which resulted in manifest injustice, could be corrected while exercising the powers under Article 227 of the Constitution of India. It is also his submission that merely because alternative remedy is available or that the petitioner failed in his attempt to get the relief in the earlier proceedings or in the review petition these circumstances do not come in the way of a party approaching the Court directly under Article 227 of the Constitution of India for the purpose of correcting the mistake committed by the lower Court and that the High Court, while exercising supervisory powers can always correct the unjust orders in the interest of justice. It is also his submission that the powers of High Court under Articles 226 and 227 of the Constitution of India have been declared as the basic structure of the Constitution and therefore this Court has powers under Article 227 of the Constitution of India where it feels that the impugned order resulted in failure of justice or where it appears that manifest injustice has been done in any case. It is also his submission that no period of limitation has been prescribed for invoking the powers of the High Court under Articles 226 or 227 of the Constitution of India. Reliance is placed on a decision reported in Chandra Bhushan Vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow6. 8. It is also his submission that no period of limitation has been prescribed for invoking the powers of the High Court under Articles 226 or 227 of the Constitution of India. Reliance is placed on a decision reported in Chandra Bhushan Vs. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow6. 8. In Shiv Shakti's case (2 supra), it was held as follows:- "If the impugned order is interim in nature or does not finally decide the lis, the revision under Section 115 will not be maintainable. The legislative intent is crystal clear. There is marked distinction in the language of Section 97(3) of the Old Amendment Act and Section 32(2)(i) of the Amendment Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendment came into force. Such an intent is significantly absent in Section 32(2)(i). The amendment relates to procedures. No person has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory change the mode of procedure is altered. The parties are to proceed according to the altered mode, without exception, unless there is a different stipulation." 9. However, in the same judgment, when a request was made that even if the revisional applications are held to be not maintainable, there should not be a bar on a challenge being made under Article 227 of the Constitution of India and that the opportunity may be granted to avail the remedy, the Apex Court observed as follows:- "That if any remedy is available to a party under any statute no liberty is necessary to be granted for availing the same. If the appellants avail such remedy, the same shall be dealt with in accordance with law." 10. If the appellants avail such remedy, the same shall be dealt with in accordance with law." 10. Thus, it appears that the above referred judgments relied by the learned counsel for the respondent, though shows that the revision filed under Section 115 C.P.C. is not maintainable after the amendment came into force with effect from 01.07.2002, but when a request is made to permit the appellants to challenge the impugned orders under Article 227 of the Constitution of India, the observation of the Hon'ble Supreme Court that there is no need to grant any liberty and that if the appellants avail such remedy, the same shall be dealt with in accordance with law, shows that the doors are not closed for the parties for approaching the Court under Article 227 of the Constitution of India. Of course, it is true that only in extraordinary circumstances the High Court should exercise its jurisdiction under Article 227 of the Constitution of India. 11. The Apex Court, dealing with the issue whether the revision could have been filed before the Commissioner of Income Tax or not and whether the revision filed before the High Court was maintainable or not, observed as follows:- "We are unable to hold that because a revision application could have been moved for an order correcting the order of Income Tax necessary under Section 35 but not moved, a High Court would be justified in dismissing as not maintainable, a petition, which was entertained and was heard on merits." 12. In Alagar alias Savugan's case (4 supra) it was held as follows:- "If a manifest injustice has been done, a Court will be justified in invoking Article 227 of the Constitution of India. The remedy under Section 115 C.P.C. cannot be said to be an alternative remedy." 13. In case between Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram7, the Apex Court observed as follows:- "Powers under Article 227 of the Constitution of India can be exercised only if the order of the lower Court is perverse or it has resulted in manifest injustice." 14. In case between Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram7, the Apex Court observed as follows:- "Powers under Article 227 of the Constitution of India can be exercised only if the order of the lower Court is perverse or it has resulted in manifest injustice." 14. The settled legal position appears to be that a High Court can interfere under Article 227 (1) of the Constitution of India generally when the subordinate Courts have committed an error in exercising jurisdiction though it has no jurisdiction or failed to exercise the jurisdiction when it has jurisdiction or committed error of law and where the findings are perverse or where there is gross violation of principles of natural justice. 15. In case between Ouseph Mathai Vs. M. Abdul Khadir8, it was observed as follows:- "Exercise of power under Article 227 may be necessary if it is shown that grave injustice has been done to a party and the case is a fit case." 16. In case between Umaji Vs. Radhikabai9, it was held as follows:- "No legislation - and far less a State legislation - can forfeit, curtain, enlarge or abridge the power under Article 227 of the Constitution. By ordinary process of legislation, even the Union Legislature cannot do it" 17. In case between Kishore Kumar Khaitan Vs. Parveen Kumar Singh10, it was held as follows:- "Finding of the fact reached in improper manner can be corrected under Article 227 of the Constitution of India." 18. In Surya Dev Rai (5 supra), the Apex Court held thus:- "The power of the High Court under Articles 226 and 227 of the Constitution is always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional jurisdiction of the High Court under Section 115 CPC by Amendment Act 46 of 1999 does not take away - and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil Court, nor is the power of superintendence conferred on the High Court under Article 227 of the constitution taken away or whittled down. The power exists, untrammeled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled." 19. The power exists, untrammeled by the amendment in Section 115 CPC, and is available to be exercised subject to rules of self-discipline and practice which are well settled." 19. Normally, a High Court would not interfere with a finding of fact except it is perverse and not based on any material. It is also settled law that the jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and may be exercised to correct the errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellate Court only {(See Khimji Vidhu Vs. Premier High School, AIR 2000 SC 3495 )}. 20. Therefore, it is clear that irrespective of the fact whether the petitioner had availed the alternative remedy or not or whether the petitioner had exhausted the other remedies or not, but where it appears that manifest injustice has been done, High Court shall have superintendence over all the subordinate Courts and Tribunals through the territory in relation to which it exercises its jurisdiction and when prejudice is caused to the general provisions, the High Court may call for written explanation from such Courts and make and issue general rules and prescribed norms for regulating the practice and proceedings of such Courts. Thus, the power of superintendence over subordinate Courts and Tribunals are exhaustive and cannot be curtailed even by any legislation. It is also settled law that powers of High Court under Articles 226 and 227 of the Constitution of India forms part of the basic features of Constitution and when they are basic features of Constitution, such powers cannot be curtailed even by amending the Constitution of India. 21. In the light of the above discussion, it is clear that where it appears that manifest injustice has been done, the High Court can interfere under Article 227 of the Constitution of India. Therefore, it is clear that where it appears to the Court that a decree has been obtained by misrepresentation or by playing fraud, the Court can exercise its power under Article 227 of the Constitution of India and entertain a revision and set aside such judgment and decree and see that illegal, unjust and irregular orders do not prevail. Therefore, it is clear that where it appears to the Court that a decree has been obtained by misrepresentation or by playing fraud, the Court can exercise its power under Article 227 of the Constitution of India and entertain a revision and set aside such judgment and decree and see that illegal, unjust and irregular orders do not prevail. It is the duty of the Court to see that fraud played by the parties should not perpetuate and as and when it comes to the notice of any Court at any stage, the Court has to set aside the same in the interest of justice. Point No.2: 22. As seen from the pleadings and evidence let in, the specific case of the respondent is as follows. The petitioner for his business necessity borrowed Rs.1,00,000/- from the respondent and Rs.50,000/- from his wife and executed two separate promissory notes on 01.02.1990. As he could not discharge the debts he agreed to sell the plaint schedule property to the respondent for Rs.1,70,000/- and executed an agreement of sale on 17.09.1990 and the said agreement of sale was registered on the same day. Out of the sale consideration, an amount of Rs.50,000/- was adjusted from the above debts due to the respondent and his wife and the receipt of said Rs.50,000/- was acknowledged in the sale agreement. As per the terms of the sale agreement the petitioner agreed to deliver the plaint schedule property to the respondent on the date of registration of the sale deed. The time for execution of sale deed agreed to be one year from the date of sale agreement. The balance of consideration was agreed to be paid before the Sub-Registrar at the time of registration of the sale deed. In case of default by the respondent, the respondent agreed to pay interest @ 12% p.a., from the date of default. The petitioner has also assured the respondent that the plaint schedule property is free from all encumbrances and delivered the Photostat copies of title deeds to the respondent. Out of balance sale consideration Rs.1,00,000/- was again agreed to be adjusted from the due amount paid to the respondent and his wife and the petitioner acknowledged the receipt of Rs.1,00,000/- on the agreement of sale on 29.10.1990. He has also delivered possession of the plaint schedule property to the respondent on 19.11.1990. Out of balance sale consideration Rs.1,00,000/- was again agreed to be adjusted from the due amount paid to the respondent and his wife and the petitioner acknowledged the receipt of Rs.1,00,000/- on the agreement of sale on 29.10.1990. He has also delivered possession of the plaint schedule property to the respondent on 19.11.1990. The further case of the respondent is that since the petitioner did not execute registered sale deed and did not come forward to receive the balance sale consideration he filed the suit for specific performance after exchange of legal notices. 23. The specific case of the petitioner is that he had borrowed only Rs.25,000/- with interest at 15% p.a., from the respondent. However, the respondent had obtained his signatures by affixing revenue stamps on the promissory notes as security, and when his creditors pressurized him, he again approached the respondent who promised to lend an amount of Rs.50,000/- with interest at 15% p.a., and that he agreed to mortgage his property in favour of the respondent and that believing the words of the respondent he accompanied him to the office of the Sub-Registrar, Attili, and signed on the documents as per the directions of the respondent, however, the respondent did not pay him Rs.50,000/- as premised by him. Subsequently, after about one week, the respondent paid only Rs.5,000/- stating that the remaining amount was already adjusted towards his previous debts and accrued interest thereon and thus great injustice was done to him. It is also his case that he along with his wife left his village for livelihood and subsequently came to know about passing of the ex parte decree against him. Thus, his specific case is that he never borrowed an amount of Rs.50,000/- from the respondent and Rs.1,00,000/- from the wife of the respondent as claimed by the respondent and that he never executed any promissory notes on 01.02.1990 and that he never agreed to sell the plaint schedule property for Rs.1,70,000/- to the respondent and that the alleged acknowledgments adjusting Rs.50,000/- and Rs.1,00,000/- are false and concocted by the respondent to grab his property. His specific case is that the respondent having taken his signatures on blank papers created promissory notes and fraudulently obtained his acknowledgements on the registered agreement of sale. His specific case is that the respondent having taken his signatures on blank papers created promissory notes and fraudulently obtained his acknowledgements on the registered agreement of sale. It is also his case that when all the creditors filed I.P. No.14 of 1990 against him and when the respondent is a party to the said insolvency proceedings, he has filed the suit suppressing the fact of pendency of insolvency proceedings. It is also his case that he was never served with the summons and that his application to set aside the ex parte decree has been still pending and that his objections that the E.P. is barred by limitation and that the E.P. is not maintainable were not properly considered by the lower Court. 24. Order IX Rule 6 CPC is as follows. "6. Procedure when only plaintiff appears.- (1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then- (a) When summons duly served-If it is proved that the summons was duly served, the Court may make an order that the suit be heard ex parte; (b) When summons not duly served-If it is not proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time-If it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement." 25. In State of West Bengal v. Lakshmi Narayan Singh11, it was held that a decree cannot be passed ex parte merely because the defendant does not appear. In case between M.P. Narayan v. Sm. Sudhadevi12, it was held that the ex parte decree was liable to be set aside in appeal on the ground of insufficiency of evidence. In State of West Bengal v. Lakshmi Narayan Singh11, it was held that a decree cannot be passed ex parte merely because the defendant does not appear. In case between M.P. Narayan v. Sm. Sudhadevi12, it was held that the ex parte decree was liable to be set aside in appeal on the ground of insufficiency of evidence. Merely because the defendant is set ex parte those circumstance alone is not sufficient to decree the suit. In my considered view, it is the duty of the Court to examine whether the suit is maintainable in law or not, whether the relief sought for in the suit is against the public policy and whether there was any collusion between the parties in obtaining the ex parte decree. The Court must consider the intention of the parties and to examine whether the suit has been filed to defeat the provisions of any law such as the Stamp Act, the Registration Act or the Tenancy Laws and whether the civil Court has jurisdiction to entertain the suit in similar circumstances, for example if in a case the question is whether a person is tenant or not, whether his tenancy is terminated in accordance with law or not, the Court must examine whether the Civil Court has jurisdiction to entertain the suit or not. Further, if there is an industrial dispute and separate Labour Courts and Industrial Tribunals have been constituted to deal with that subject under separate statute, in such circumstances, the Court must examine whether the Civil Courts jurisdiction has been ousted or not. Therefore, the plaintiff would not get an automatic right of obtaining a decree merely because the defendant is set ex parte. 26. Thus, it appears that in a case where the defendant is set ex parte though the Court is not required to thoroughly examine as to whether the plaint averments are true or not, but, at the same time, the Court is required to examine (1) whether it has jurisdiction to deal with the matter, (2) whether the claim of the plaintiff has been barred by limitation or by any other law and (3) whether the documents relied on by the plaintiff require stamp duty, registration and inadmissible in evidence. In the instant case, the endorsement dated 29.10.1990 appears to be inadmissible in evidence in view of the non- registration of the same. In the instant case, the endorsement dated 29.10.1990 appears to be inadmissible in evidence in view of the non- registration of the same. Moreover, though the Court is not required to make a thorough enquiry the Court should necessarily consider what is the original case of the plaintiff and whether the case of the plaintiff is in consonance with the documents filed by him or not. If from the recitals of the documents and from the averments of the plaint it appears that there is any material alteration in the recitals of the document giving advantageous position to the plaintiff and may result in unjust denial of the rights of the defendant, then the Court is not bound to accept the case of the plaintiff particularly while dealing with a case of specific performance. 27. Section 20 of the Specific Relief Act, 1963, reads as follows:- Section 20 - Discretion as to decreeing specific performance:- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guide by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:-- (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff; or (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. 28. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. 28. The lower Court ought to have considered that against the original terms of agreement of sale, the respondent claimed the adjustment of the debt amount towards the part payment of sale consideration and in view of inconsistent stand taken by the respondent, there was no basis for the Court to grant discretionary relief to the respondent. The Court also ought to have considered that there existed several factors that make the respondent disentitled from being granted relief of specific performance (Refer P.Prabhakar Rao Vs. P.Krishna Rao - (2007) 4 ALT 569 ). Where a person seeks specific performance, which being an equitable relief, he must come to the Court with clean hands and where it appears that the plaintiff has not come to the Court with clean hands and where there are suspicious circumstances with regard to the payment of sale consideration amount or the execution of endorsements, the Court is not bound to grant a decree of specific performance of contract. 29. Referring to Section 20 of the Specific Relief Act, the Apex Court, in case between Parakunnan Veetill Joseph's Son Mathew Vs. Nedumbara Kuruvilla's Son and others13, held as follows:- Section 20 of the Specific Relief Act. 1903 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance." 30. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance." 30. Thus, it is clear that merely because a suit has been filed, the Court is not bound to decree the suit. The Court has to exercise judicial discretion and examine the facts and circumstances of the case and consider the motive behind the litigation and a fraud, if any, played by the parties to the suit and the situation under which the defendant was set ex parte and not contesting the suit. In fact, in a case where the defendant is not appearing before the Court for any reason, the burden increases on the Court to meticulously examine the entire record and if the Court feels that it is not a fit case of decreeing the suit, in its discretion, the Court may dismiss the suit and reject the prayer for specific performance. The Court is not bound to grant specific performance merely because a suit is filed for specific performance. POINT No.3: 31. Learned counsel for the petitioner submits that as per the terms of the agreement the time specified for executing the registered sale deed is only one year and that though the agreement of sale is a registered one the subsequent endorsements are unregistered and unregistered endorsements which are not marked cannot be relied upon by the Court and cannot be deemed to be a part of the registered document. He further contends that as seen from the contents of the agreement there is no provision in the said agreement for making any part payments and for obtaining endorsements before the date of registration. 32. The learned counsel for the petitioner submitted that if the terms and conditions of the agreement and the pleadings of the respondent in the plaint in O.S. No.71 of 1992 were compared with each other they reveal that the respondent played fraud and the case put forth in the plaint is entirely different and contrary to the terms and conditions and tenor of the agreement of sale. The learned counsel for the respondent submitted that the petitioner's application to set aside the ex parte decree was dismissed and the executing Court cannot enquire with regard to validity of the decree and that there is no material variation in the pleadings and in the recitals of the agreement of sale. 33. Admittedly, as seen from the recitals of Ex.A1 they reveal that the petitioner herein agreed to sell the plaint schedule land, totally admeasuring Ac.5-50 cents in various survey numbers for a sum of Rs.1,70,000/- and received an amount of Rs.50,000/- towards advance and agreed to receive the remaining amount of Rs.1,20,000/- on the date of registration and that the period for payment of remaining amount was fixed as one year and in case if the respondent failed to pay the amount he agreed to pay interest at 12% p.a. As seen from the plaint averments the respondent's case is that the petitioner had borrowed Rs.50,000/- from him and an amount of Rs.1,00,000/- from his wife on 01.02.1990 and since he failed to pay the amount he executed the agreement of sale on 17.09.1990. It has to be seen that there is no reference to the alleged execution of promissory notes or the incurring of debts of Rs.50,000/- from the respondent and Rs.1,00,000/- from his wife in Ex.A1. If at all there are debts and promissory notes executed by the petitioner nothing prevented the respondent from mentioning about the same in the agreement of sale Ex.A1. It has to be seen that the recitals of Ex.A1 clearly go to show that the respondent has agreed to pay Rs.1,20,000/- on the date of registration within a period of one year and failing which he agreed to pay interest at 12% p.a. If such is the case, the subsequent endorsement with regard to adjustment of Rs.1,00,000/- of previous debt create a reasonable doubt with regard to its genuineness. When we closely examine the acknowledgment said to have been endorsed by the respondent dated 19.11.1990 it is clear that the written matter has been adjusted above the signature of the petitioner. When we closely examine the acknowledgment said to have been endorsed by the respondent dated 19.11.1990 it is clear that the written matter has been adjusted above the signature of the petitioner. As per the original agreement of sale the respondent is bound to pay Rs.1,20,000/- on the date of registration, but as per the acknowledgment dated 19.11.1990 the remaining sale consideration amount has been adjusted towards the previous debt and the respondent need not pay Rs.1,20,000/- as agreed by him within a period of one year and that too with interest at 12% p.a., in case of default. Thus, it is clear that the terms and conditions in the agreement of sale have been materially altered and drastically changed and a new document seems to have been created at a subsequent date i.e., on 19.11.1990 before filing the suit. 34. Section 17(1)(a)(b)(c) of the Registration Act, 1908 are as follows. "1. Documents of which registration is compulsory:- (1) The following documents shall be registered, if the property to which they relate is situate in a district in which and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely: (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and ............................" 35. Therefore, any document which is non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property require registration. Therefore, any document which is non-testamentary instrument which purport or operate to create, declare, assign, limit or extinguish whether in present or in future, any right, title or interest whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property require registration. Sub-clause (c) of Section 17 of the Registration Act also makes it clear that any non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest also require registration. The acknowledgment dated 19.11.1990 clearly shows that it is with regard to acknowledgment of the receipt of Rs.1,00,000/- consideration amount and on account of such acknowledgment a right in immovable property has been created and right to receive remaining balance of consideration amount by the petitioner is extinguished. When earlier conditions are drastically altered creating or extinguishing any rights in receipt or payment of any consideration such acknowledgment or endorsement in my considered opinion require registration because by this acknowledgment the seller uses his right to receive the balance of sale consideration though he is entitled for balance of sale consideration as per the terms of the original agreement of sale. When the acknowledgment or endorsement completely changes the tenor of the original agreement and terms and conditions of the agreement that itself would become a document within the meaning of Section 17(1) of the Registration Act and the same require registration. Therefore, the acknowledgment dated 19.11.1990 also can be treated as a separate document and it creates right in respect of the immovable property on the respondent. Similar question came before the Hon'ble Supreme Court in Padma Vithoba Chakkayya v. Mohd. Multani14, wherein it was held that the endorsement of cancellation on the back of the sale deed not registered such endorsement does not extinguish the title of the vendee and is not admissible in evidence except to show character of possession of vendee. POINT No.4: 36. According to the learned counsel for the petitioner, the petitioner is the resident of Venkatapuram, Hospet Taluk, Bellary District, Karnataka State. But, admittedly, his address was shown in the suit as resident of Pippara, Tadepalligudem DMC. Admittedly, summons were not served on the petitioner and summons were ordered to be published and deeming that summons have been served on the petitioner he was set ex parte. But, admittedly, his address was shown in the suit as resident of Pippara, Tadepalligudem DMC. Admittedly, summons were not served on the petitioner and summons were ordered to be published and deeming that summons have been served on the petitioner he was set ex parte. Admittedly, in the present E.P. the respondent had shown the address of the petitioner as resident of Kamplihospeta, Ballari District, Karnataka State. It has to be seen that even in I.P. No.14 of 1990 the address of the petitioner was shown as Kamplihospeta, Ballari District, Karnataka State. Therefore, it is clear that the respondent had shown the incorrect address of the petitioner in O.S. No.71 of 1992 and obtained ex parte decree. Admittedly, I.P. No.14 of 1990, to which the respondent is also a party, was pending as on the date of filing of O.S. No.71 of 1992. This means the respondent had knowledge about the insolvency proceedings and in spite of such knowledge he did not whisper anything about the insolvency proceedings in O.S. No.71 of 1992 and, thus, he is guilty of suppression of facts. Admittedly, I.P. No.14 of 1990 was allowed on 24.11.1998. Of course, the order in I.P. was set aside in A.S. No. 4 of 1999 on the file of the IV Additional District and Sessions Judge, Fast Track Court, Tanuku, but during the pendency of said appeal, the respondent filed E.P (SR) No.2394 of 1996 and did not whisper anything about the pendency of the insolvency proceedings in the said E.P. 37. Sub-section (2) of Section 28 of the Provincial Insolvency Act, 1920 is as follows. "(2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided and shall become divisible among the creditors, and thereafter except as provided by this Act, no creditor to whom the insolvent is indeputed in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose." 38. Learned Counsel for the petitioner had relied on the judgment in case between Katragadda Sreeramamma Vs. Learned Counsel for the petitioner had relied on the judgment in case between Katragadda Sreeramamma Vs. Official Receiver, Guntur15, wherein the Apex Court held as follows:- "In the case, if an objection was raised in the lower Court that the leave of the Insolvency Court was not obtained under Section 2 of the Provincial Insolvency Act, the suit was not maintainable. The appellate Judge permitted the objection to be taken even though it was raised in the trial Court and remanded the case to give an opportunity to the plaintiff /appellant herein to meet with the said objection according to the provisions of the Provincial Insolvency Act. The Court also held that on the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a Official Receiver. No suit shall be commenced except with the leave of the Court." 39. Learned counsel for the petitioner also placed reliance on the judgment in case between Dondapati John v. Vaddi Subrahmani16,, referring to Sub-section (2) of Section 28 of the Provincial Insolvency Act, this Court observed as follows:- "Prohibition against the commencement of a suit or proceedings without leave of the court comes into play only on the making of an order of adjudication, it is not an absolute prohibition in the sense that no suit or proceeding could be commenced, but they could be filed only with the leave of the Court." 40. Thus, the settled legal position is that proceedings presented before the order of adjudication are outside the purview of Section 28(2) of the Insolvency Act. Of course, Sub-section 7 of Section 28 of the Insolvency Act envisages that an order of adjudication shall relate back to take effect from the date of presentation of petition on which it is made. Thus, it is clear that on making an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in the Official Receiver and thereafter, except as provided by the Provincial Insolvency Act, no creditor shall proceed with any suit or legal proceeding against the property of the insolvent in respect of any debt, except with the leave of the Court on such terms as the Court may impose. Thus, it is clear that the respondent knowing very well that if he informs the Court about the order passed by the insolvency Court he cannot continue the proceedings in O.S. No.71 of 1992 he has deliberately suppressed the order of the insolvency Court. Of course, the present EP seems to have been filed after the orders have been passed in A.S. No.4 of 1990, but the fact remains that the respondent had suppressed the order passed in I.P. in the earlier proceedings at the time of filing of I.A. No.302 of 2001 and while depositing the balance of sale consideration amount. 41. Admittedly, for non-deposit of remaining balance sale consideration amount an objection was raised and the petitioner without depositing the balance sale consideration amount has not pressed the EP and consequently it was rejected on 17.07.2002. Subsequently, he filed I.A. No.302 of 2001 in OS No. 72 of 1992 to condone the delay of 2928 days in depositing the sale consideration and the said IA was allowed on 17.09.2002. Then the respondent deposited the balance sale consideration on 20.09.2002. Though the said order was carried in revision before this Court in CRP No.3124 of 2008, the same was dismissed on 09.11.2009. It has to be seen that during that period the order passed by the insolvency Court declaring the petitioner as insolvent was in force and the respondent did not whisper anything about the order passed in I.P in those proceedings. Thus, it is clear that he is guilty of suppression of facts. 42. Admittedly, the ex parte decree passed in O.S. No.71 of 1992 is as follows. "That the defendant be and hereby is directed to execute a proper conveyance and register the same in favour of the plaintiff within two months after receiving the balance of sale consideration amount from the date of decree." 43. Admittedly, the respondent did not deposit the amount within a period of two months from the date of the decree. The main submission of the learned counsel for the petitioner is that the respondent had obtained ex parte decree by playing fraud and that he is guilty of suppression of pendency of insolvency proceedings and the order passed by the Insolvency Court. The main submission of the learned counsel for the petitioner is that the respondent had obtained ex parte decree by playing fraud and that he is guilty of suppression of pendency of insolvency proceedings and the order passed by the Insolvency Court. It is also his submission that once it is established that a party has indulged in fraud, fraud can be challenged in collateral proceedings and the fraud vitiates entire proceedings. In support of his contention, he has relied on the decisions reported in S.P. Chengalvaraya Naidu (Dead) by LRs Vs. Jagannath (Dead) by Lrs17, United India Insurance Co. Ltd., Vs. Rajendra Singh18, Pagadala Pedda Yadaiah Vs. K. Annapurnamma19. It is also his submission that, admittedly, the recitals of the agreement of sale do not speak about the previous debts and execution of promissory notes, but the plaint averments show that the petitioner has acknowledged the previous dues by acknowledging the same by making specific endorsements in Ex.A1 agreement of sale and thus concocting an endorsement as if he has adjusted the previous debt of Rs.1,00,000/- in Ex.A1 also amounts to fraud. 44. Sri P.V. Vidyasagar, learned counsel for the respondent submitted that there is no fraud in this case and that the petitioner was set ex parte in the suit and basing on the evidence available, the suit was decreed and that the petitioner filed application to set aside the ex parte decree and that application was dismissed and subsequently he filed an application to restore the said application and the same is pending and therefore the decree has become final and once the decree has become final, the executing Court cannot go beyond the decree. 45. In case between S.P.Changalvaraya Naidu Vs. Jagannath (16 supra), The Apex Court observed as follows:- "A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. IT is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. When a false representation is made and when incorrect facts have been placed before the Court, the same amounts to misrepresentation and fraud. By making such incorrect and false representation, the Court is made to believe such false representation as true and rather induced to act on such representation. It is a cheating intended to get an advantage. When a false representation is made and when incorrect facts have been placed before the Court, the same amounts to misrepresentation and fraud. By making such incorrect and false representation, the Court is made to believe such false representation as true and rather induced to act on such representation. The settled legal position is that fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence (See Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers, 1992 (1) SCC 534 ). 46. In the said decision, the Apex Court further observed as follows:- "A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side than he would be guilty of playing fraud on the Court as well as on the opposite party. The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment / decree -- by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 47. Such a judgment / decree -- by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings." 47. Learned counsel for the petitioner relied on the judgment in case between Yeshwant Deorao v. Walchand Ramchand20, wherein the Apex Court held as follows:- "Fraudulent motive or design is not capable of direct proof in most cases; it can only be inferred. In the very nature of things, fraud is secret in its origin or inception and in the means adopted for its success. Each circumstance by itself may not mean much, but taking all of them together, they may reveal a fraudulent or dishonest plan." 48. In United India Insurance Co. (17 supra) the Apex Court held as follows:- "No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim. For a High Court in India to say that it has no power even to consider the contention that the award secured are the by-products of stark fraud played on a Tribunal, the plenary power conferred on the High Court by the Constitution may become a mirage and people's faith in the efficacy of the High Courts would corrode." 49. In this case, the Apex Court was dealing with an issue whether the claimants had obtained an award on a fake claim. It was further held as follows:- "It would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then." 50. In case between A.V.Papayya Sastry and others Vs. Govt. of A.P. and others21, the Apex Court held as follows:- "A judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order - by the first Court or by the final Court - has to be treated as nullity by every Court, superior or inferior. Such a judgment, decree or order - by the first Court or by the final Court - has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings." "The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order." "The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practicing or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants." 51. In the light of the above referred judgments, it is clear that if once it is established that fraud has been played, the entire proceedings have to be treated as nullity and the orders and judgments passed in those proceedings have to be treated as non est in the eye of law. 52. In the light of the above referred judgments, it is clear that if once it is established that fraud has been played, the entire proceedings have to be treated as nullity and the orders and judgments passed in those proceedings have to be treated as non est in the eye of law. 52. As discussed above, the circumstances that the respondent has shown the incorrect address of the petitioner in the cause title of O.S. No.71 of 1992 and the fact that Ex.A1 appears to have been materially altered and the said alteration is not registered and the fact that the respondent did not whisper about the insolvency proceedings in his pleadings during the pendency of insolvency proceedings and even after the I.P was allowed clearly go to show that he is guilty of suppression of facts and thereby committed fraud on Court. Therefore, the decree which appears to have obtained fraudulently cannot be allowed to be executed and it amounts to perpetuating the fraud. POINT No.5: 53. Learned counsel for the petitioner submitted that the decree envisages that the petitioner shall execute registered sale deed within two months from the date of the decree after receiving the balance of sale consideration from the respondent herein, but admittedly the respondent kept quiet for four years without approaching the Court. His main submission is that nothing prevented the respondent from depositing the balance sale consideration amount immediately after the date of the decree or within a reasonable period from the date of the decree and that it is the respondent who delayed the matter for the reasons best known to him and had he deposited the balance sale consideration amount the burden would have shifted to the petitioner to execute the registered sale deed. It is his submission that it was not obligatory on the part of the petitioner to approach the lower Court to obtain orders for depositing the balance sale consideration amount and the observation of the lower Court is absolutely unreasonable and the lower Court was under a wrong premise that it was obligatory on the part of the petitioner to approach the lower Court for giving directions to deposit the balance sale consideration. His main submission is that when the respondent has approached the Court for specific performance of agreement of sale he must prove that he is always ready and willing to pay the balance sale consideration and in fact the respondent should have deposited the amount on the date of filing of the suit itself or immediately after the suit was decreed and non-depositing of the amount for a period of four years shows that the respondent had no interest to perform the part of his duty. It is also submitted that admittedly the respondent has filed EP (SR) No.2356 of 1996, but it was returned with a specific objection that the balance of sale consideration amount was not deposited and in spite of the office objections the respondent did not deposit the balance sale consideration amount. It is further submitted that subsequently the respondent has not pressed the said EP and the same was rejected and then he filed an application seeking extension of time for depositing the balance of sale consideration amount and to condone the delay of 2028 days and unfortunately the said IA was allowed and subsequently revision filed against the said order was also dismissed. The main submission of the learned counsel for the petitioner is that the present EP which is filed beyond the period of three years from the date of decree is barred by limitation. It is his main submission that the respondent would not get time from the date of deposit of balance sale consideration, since the time starts running from the date of decree under Article 136 of the Limitation Act. It is also his submission that since it is within the purview of the respondent to deposit the amount and nothing prevented him from depositing the amount and he committed default in depositing the amount and a party who committed a fault cannot take advantage of his own fault and can say that the period of limitation starts running from the date of belated deposit of the balance sale consideration amount. It is also his submission that merely because time is extended for deposit of remaining sale consideration that itself will not bring the E.P within the period of limitation. His submission is that depositing of balance of sale consideration and filing of E.P are two different issues though connected to each other. It is also his submission that merely because time is extended for deposit of remaining sale consideration that itself will not bring the E.P within the period of limitation. His submission is that depositing of balance of sale consideration and filing of E.P are two different issues though connected to each other. It is also his submission that the respondent who had mislead the Court by not informing the Court about the pendency of the insolvency proceedings and who had played fraud cannot take advantage of the pendency of the insolvency proceedings for not depositing the balance sale consideration amount. It is also argued that when the pendency of insolvency proceedings could not come in the way of the respondent in depositing the balance of sale consideration or in filing the petition, it is absurd to say that the pendency of insolvency proceedings came in the way of the respondent in filing the EP. His main submission is that once the period of limitation expires, the EP is not maintainable and when the respondent had not deposited the balance sale consideration amount, he cannot take advantage of his own wrong and say that the decree became enforceable from the date of the deposit of the remaining sale consideration. When a decree becomes enforceable, according to the learned counsel for the petitioner, has been discussed in Hameed Joharan (D) and others Vs. Abdul Salam (D) by LRs and others22. It is also his contention that once the period of limitation started running, the subsequent act of the respondent cannot stop running the period of limitation. Learned counsel for the petitioner has relied on the judgment reported in Cherukuri Venkata Rao Vs. Brahmojosyula Bala Gangadhara Sharma23. His main submission is that even though no specific period has been prescribed for complying with any conditions of a decree the conditions must be complied within a reasonable period and in several decisions it was held that the reasonable period should not exceed three years. 54. Brahmojosyula Bala Gangadhara Sharma23. His main submission is that even though no specific period has been prescribed for complying with any conditions of a decree the conditions must be complied within a reasonable period and in several decisions it was held that the reasonable period should not exceed three years. 54. Sri P.V. Vidyasagar, learned counsel for the respondent, submitted that though there was some delay in depositing the balance sale consideration but the respondent had filed an application in I.A. No.302 of 2001 and that the delay was condoned and challenging the same the petitioner filed a revision and that this Court dismissed the said revision petition and after dismissal of the said revision petition now the petitioner cannot harp on the issue of limitation. His main submission is that the period of limitation starts from the date when a decree become enforceable and in this case the decree became enforceable only after depositing of the balance sale consideration amount and once the delay is condoned the petitioner cannot raise the same point once again. It is also submitted that since no appeal is pending against the said decree, the decree has become final. It is also his submission that there may be many reasons for making a decree at later date, there may be delay in filing the costs memo by the advocates and there may be delay in preparing the decree, and merely because the decree bears the same date i.e., the date of passing of the judgment that does not mean that the decree was ready on the date of judgment itself and in the above circumstances, it is not known from which day the period of limitation has to be counted. There may be cases where certain amounts such as mesne profits have to be ascertained at a later date and in such cases the decree would be enforceable from the date of ascertaining the mesne profits. He has relied on the decisions reported in Sri Chandra Mouli Deva Vs. Kumar Binoya Nand Singh24 and Yerramilli Satyanandan Vs. Yerramilli Rudra Raju25. 55. Learned counsel for the petitioner, in reply, submitted that merely because the respondent was permitted to deposit the balance of sale consideration that will not bring the execution petition under limitation and it will not authorize any Court to direct execution when the same is barred under Article 136 of the Limitation Act. Yerramilli Rudra Raju25. 55. Learned counsel for the petitioner, in reply, submitted that merely because the respondent was permitted to deposit the balance of sale consideration that will not bring the execution petition under limitation and it will not authorize any Court to direct execution when the same is barred under Article 136 of the Limitation Act. It is his main submission that the Court cannot enlarge the time prescribed under Article 136 of the Limitation Act. 56. Admittedly, an ex parte decree was passed on 17.09.1992 and the decree envisages that the petitioner should execute a proper conveyance and register the same in favour of the respondent within two months after receiving the balance of sale consideration amount from the date of decree. Though the decree was passed on 17.09.1992, the first respondent admittedly kept quiet till 1996 and filed E.P.(Sr)No.2394 of 1996 on 27.07.1996. Admittedly, an objection was taken that the first respondent failed to deposit the balance of sale consideration as per the terms of the decree. Subsequently, the said E.P. was withdrawn on 07.07.2000. It has to be seen that the Insolvency proceedings were pending during that period. The said I.P. was allowed on 24.11.1998. When the order in IP was in force an application to condone the delay in payment of balance of sale consideration in I.A.No.302 of 2001 was filed with condonation of delay of 2928 days without informing the Court about the order of insolvency court and the said application was allowed and revision challenging the same filed before this Court was also dismissed. Then the petitioner deposited the balance of sale consideration on 19.09.2002 and admittedly an appeal in A.S. No. 4 of 1999, filed against the order in IP, was pending on that day. 57. Sri P.V. Vidyasagar, learned counsel for the respondent submitted that since the delay in depositing the balance of sale consideration was condoned and the petitioner had deposited the balance of sale consideration amount, the E.P. cannot be dismissed for the delay in deposit of balance of sale consideration. But however, merely because the delay in deposit of balance of sale consideration is condoned, whether that brings the E.P. within the period of limitation? Admittedly, the decree was passed on 17.09.1992 and the present E.P. is filed on 24.08.2005, i.e., clearly beyond the period of twelve years. 58. But however, merely because the delay in deposit of balance of sale consideration is condoned, whether that brings the E.P. within the period of limitation? Admittedly, the decree was passed on 17.09.1992 and the present E.P. is filed on 24.08.2005, i.e., clearly beyond the period of twelve years. 58. Sub-Section (2) of Section 28 of the Provincial Insolvency Act, reads as follows:- 28:- Effect of an order of adjudication:- (2) On the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceeding, except with the leave of the Court and on such terms as the Court may impose. (4) All property which is acquired by or devolves on the insolvent after the date of an order of adjudication and before his discharge shall forthwith vest in the Court or receiver, and the provisions of sub-section (2) shall apply in respect thereof. (7) An order of adjudication shall relate back to, and take effect from, the date of the presentation of the petition on which it is made. 59. It has to be seen that on the day when balance of sale consideration was deposited the order in IP was in force. A reading of the above referred sub-sections of Section 28 of the Insolvency Act makes it clear that the respondent could not have taken any steps since he could not have any remedy against the property of the insolvent in respect of the debt and he could not have commenced any suit or legal proceedings except with the leave of the Court except on such terms as the Court may impose as per Sub-Section 2 of Section 28 of the Insolvency Act. 60. The important question that arises for consideration is when the decree for specific performance became enforceable. 61. Learned counsel for the respondent submitted that the period of limitation prescribed by Article 136 of the Limitation Act starts run from the date when the decree became enforceable. 62. 60. The important question that arises for consideration is when the decree for specific performance became enforceable. 61. Learned counsel for the respondent submitted that the period of limitation prescribed by Article 136 of the Limitation Act starts run from the date when the decree became enforceable. 62. Article 136 of the Limitation Act, 1963, reads as follows:- Description of suits Period of limitation Time from which period begins to run 136. For the execution of any decree (other than decree granting a mandatory injunction) or order of any Civil Court Twelve Years Where a decree or order becomes enforceable or where the decree or any subsequent order directs any payment of money or delivery of any property to be made at a certain date or at recurring periods, when default in making the payment of delivery in respect of which execution is sought takes place; provided that an application for the enforcement of execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. 63. "In Deep Chand v. Mohan Lal26, relied on by the learned counsel for the first respondent, the suit for specific performance of contract was decreed on 22.02.1973. The decree was amended by an order dated 05.05.1973. The appeal filed by the judgment debtor was dismissed on 15.09.1979. However, the appeal was subsequently restored and finally disposed on merits by the District Court on 11.03.1981 subject to the condition that in case the judgment debtors make the payment of Rs.15,500/- to the decree holder, the plaintiff's suit shall stand dismissed and appeal accepted. The judgment debtor failed to abide by the terms of the said decree. The decree holder deposited the balance of sale consideration on 12.01.1982. Decree holder filed E.P. on 17.12.1992. The applications of 17.12.1982, 12.06.1984 and 21.09.1992, however, were dismissed. The decree holder got the sale deed executed and registered in his favour through the process of Court. Despite the mutation of ownership sanctioned in favour of decree holder, the judgment debtors did not deliver the possession of the land in question. Then he filed an application for execution in April 1994 which was dismissed by the Executing Court on 24.09.1998 holding that the same was barred by limitation. Despite the mutation of ownership sanctioned in favour of decree holder, the judgment debtors did not deliver the possession of the land in question. Then he filed an application for execution in April 1994 which was dismissed by the Executing Court on 24.09.1998 holding that the same was barred by limitation. Then the decree holder filed a revision petition in the High Court and it was allowed and the order of the High Court was challenged before the Supreme Court. The main ground that was taken was that the E.P. was filed after 12 years from the date of decree and the same was barred by time. The Apex Court observed as follows:- "Article 136 of the Limitation Act is a specific article prescribing and dealing with the applications for execution of decree and orders. A perusal of the Article shows that the period of limitation prescribed by it starts to run from the date when the decree becomes enforceable provided the case does not fall within the scope of the latter part of the provision in the third column. Generally a decree or order becomes enforceable from its date, but in appropriate cases that Court passing the decree may prescribe time wherefrom the decree becomes enforceable on a future date." Holding that the sale deed was executed in favour of the decree holder vide Court's order dated 23.03.1984 and the E.P. filed in April, 1994, i.e. within a period of 12 years as prescribed under Article 136 of the Limitation Act, the High Court rightly held that the decree for possession of land became enforceable only after the execution of the sale deed as was the direction of the Court decreeing the suit. Thus, the Apex Court, in the circumstances of the case, held that before the execution of the sale deed in his favour on 23.03.1984, the decree-holder was not entitled to possession in terms of the decree. The decree, therefore, itself directed its execution after the execution of the sale deed in favour of the decree holder. The language of Article 136 cannot be strained in favour of the judgment debtors who have been found to have not availed of the benefit of decree conferred upon them as they are proved to have failed to pay the amount even in instalments. The language of Article 136 cannot be strained in favour of the judgment debtors who have been found to have not availed of the benefit of decree conferred upon them as they are proved to have failed to pay the amount even in instalments. In that case, since the judgment debtor failed to pay the amount even in instalments as per the decree, the same was being executed in favour of the decree holder vide Court orders dated 23.03.1994. It was further held that the E.P. was within the period of limitation." 64. Learned counsel for the respondent had also relied on the judgment in case between Sri Chandra Mouli Deva (23 supra). In that case, the judgment was delivered on 24.08.1957. The decree was for recovery of Rs.21.154/13/4 besides costs. The E.P. was filed on 10.10.1969. The Judgment Debtor filed objections under Section 47 of the Code of Civil Procedure contending that the decree became barred by limitation. The Executing Court came to the conclusion that Article 136 of the Limitation Act, 1963 was applicable and that the junior advocate appearing for the decree holder was under the wrong impression that the time began to run not from 28.09.1957 but from 17.11.1957 was immaterial and thus, dismissed the E.P. the Apex Court, having regard to the corresponding Article 136 of the Limitation Act, of course held that the time taken for preparation of formal decree cannot be executed but the purpose of Article 136 of Limitation Act, held as follows:- "This proposition, however, is subject to the condition that the decree for realization of money or any part thereof has been ascertained in the judgment. In case whole or any part thereof has been mentioned in the judgment then whole of the decree or part of the decree, as the case may be, becomes enforceable immediately on the pronouncement of the judgment (which is the date of the decree) but where the amount decreed or any part thereof has to be ascertained subsequent to the pronouncement of judgment, then the whole or part of the decree which has to be ascertained subsequently remains in abeyance till the amount is ascertained." 65. Then, the Patna High Court held that since the judgment was pronounced on 24.08.1957 and the E.P. was filed on 10.10.1969 i.e. beyond 12 years. Then, the Patna High Court held that since the judgment was pronounced on 24.08.1957 and the E.P. was filed on 10.10.1969 i.e. beyond 12 years. Therefore, the execution in so far it related recovery of Rs.21,154/13/4 and interest thereon is barred by limitation. However, since the amount of cost was not ascertained in the judgment, it was not for the decree holder to enforce the decree insofar as it relates to cost of Rs.21,190.62 paise. The amount of costs awarded to him was ascertained for the first time on 16.11.1957 when the decree was sealed and signed. It was only on this day that the decree insofar as it related to the costs became enforceable and it could be executed within 12 years from the day. Thus, the Patna High Court categorically held that where the amount could not be ascertained on the date of decree and could be ascertained only on a subsequent, E.P. can be filed in respect of amounts ascertained from the date on which it was ascertained. On a critical analysis of this case and the case on hand, it is clear that the above decision is also not applicable to the facts of this case because there was nothing to be ascertained after passing of the decree in this case. 66. In Yerramilli Satyanandan (24 supra), in an appeal against the final decree in partition suit, the High Court, on 29.11.1951, while setting aside a part of the decree, directed the trial Court to enquire afresh into the items enumerated therein and determine the amounts due to the plaintiff after affording opportunity to the parties to adduce evidence. The High Court modified the final decree in the light of the Court's direction. The E.P. filed by the plaintiff was resisted on the ground that it was barred by limitation as it was filed more than three years of the making of the appellate decree i.e., on 29-11-1951. The High Court categorically held that "it is only after ascertainment of the outstandings that the decree was in a form capable of execution." 67. The above referred decisions, on which the learned counsel for the respondent relied upon, shows that where in a case the ascertainment of declared amounts or costs was done, subsequently, the period of limitation starts running from that specified date and in all other cases, the limitation starts from the date of decree. The above referred decisions, on which the learned counsel for the respondent relied upon, shows that where in a case the ascertainment of declared amounts or costs was done, subsequently, the period of limitation starts running from that specified date and in all other cases, the limitation starts from the date of decree. 68. Per contra, learned counsel for the revision petitioner had relied on some judgments in support of his contentions. Let us see what has been elucidated in those judgments. 69. He relied upon Siri Ram Kuar v. Ram Prasad Ghosh27. In that case, the appellant's suit was decreed against the respondent for the arrears of rent. There were two decrees. One decree was passed on 23.05.1921 and the other was passed on 24.08.1921. The respondents were adjudicated insolvents in the year 1917 prior to the date when two aforesaid decrees were obtained by the appellants against them. The first application for execution was filed by the appellant on 21.03.1927 and it was dismissed for want of prosecution on 07.10.1927. Subsequently, on 01.10.1927, the appellant filed the present application for execution. The Courts below held that the two applications filed by the appellant are time barred. It was contended by the appellant that the execution of those decrees must be considered to have been stopped since the respondents were insolvents. The High Court of Oudh did not agree with the said contention. Holding that the appellant was secured creditor under Section 28(6) of the Provincial Insolvency Act, the insolvency proceedings are not to effect bar of any secured creditor to release or otherwise deal with its security in the same manner as he would have been entitled to release or deal with it if no order of adjudication has been made and, therefore, the fact that the respondents were adjudicated insolvents could not have prevented the appellants from obtaining the decree by putting it into execution and in the circumstances, no question of any exclusion of period of limitation at all arises. Thus, the High Court of Oudh held that the execution of decree was time barred and it was held that though the judgment debtor was declared as insolvent prior to passing of decree, that will not save the said limitation. 70. Thus, the High Court of Oudh held that the execution of decree was time barred and it was held that though the judgment debtor was declared as insolvent prior to passing of decree, that will not save the said limitation. 70. In Yeshwant Deorao's case (19 supra), the Apex Court held as follows:- "Where a decree provides that the decree-holder should pay the deficit court-fee on the decreetal amount before its execution the decree is not a conditional one in the sense that some extraneous event is to happen on the fulfillment of which alone it can be executed. The payment of court fees on the amount found due is entirely in the power of the decree-holder and there is nothing to prevent him from paying it then and there. Thus, it is a decree capable of execution from the very date it is passed." 71. Learned counsel for the petitioner had relied on the judgment in case between Manchala Subbareddy Vs. Kypa Hussain Reddy28. In that case, a decree was passed and direction was issued that the decree shall not be executed till the court-fee is paid on the amount ascertained as mesne profits. The question that arose for consideration is when a final decree is passed and a direction is made that the decree shall not be executed until the Court-fee is paid, would it suspend the period of limitation till such period as the decree- holder chooses to pay the Court-fee. Answering this question, it was held as follows:- "At any rate, limitation could not be held in abeyance because of the non- payment of the Court-fee, otherwise it would mean that it would be open to the decree-holder to keep the decree alive even beyond the period of limitation prescribed under the Limitation Act if he so chooses by deferring the payment of the Court-fee. Where execution of the decree is made conditional upon the payment of the Court-fee, the right to apply for execution is not stayed and it has always been held that in such decree, the starting point of limitation is the date of the decree and not the date of the payment of the Court-fee. Only in those cases where the decree could not be executed for causes beyond the control of the decree-holder that a decree would be regarded as incapable of execution immediately, otherwise not." 72. Only in those cases where the decree could not be executed for causes beyond the control of the decree-holder that a decree would be regarded as incapable of execution immediately, otherwise not." 72. In the instant case also, since the deposit of balance of sale consideration was within the purview of the first respondent / decree holder, it cannot be said that the period of limitation does not start from the date of the decree, but only starts from the date when he deposited the balance of sale consideration. 73. Learned counsel had also relied upon the judgment in case between Radhabai Vs. Pandurang Krishna Tarase29. The facts of the case are that the decree-holder obtained decree on 31.12.1953. The decree directed the plaintiff to pay to the defendants, a sum of Rs.1,200/- and obtain possession of the suit schedule property from them. There was also a direction that the defendants are liable to pay the suit costs to the plaintiff. The decree holder filed Darkhast on 31.04.1961 claiming that he deposited a sum of Rs.1,200/- and that the delivery of possession may be ordered. The Judgment Debtor took the plea that the application was barred by limitation. It was contended that as decree has not prescribed any time limit within which the decree-holder is required to deposit a sum of Rs.1,200/- before taking possession, it is open to him to deposit the amount any time within 12 years from the date of decree. It was held that "the decree-holder cannot obtain restoration of limitation by deferring payment. Limitation runs from the date of decree, whether any time for payment is fixed or not." 74. In the case between Posani Ramachandraiah Vs. Daggupati Seshamma30, it was held as follows:- "Under Article 136 of the Limitation Act, the period of limitation can be reckoned from the date of appellate decree, even though there was no stay in the appeal. If there is an appeal, the decree that can be enforced is that of the appellate Court, and the period of limitation has to be reckoned from the date of that decree." 75. Reliance is also placed on the judgment in case between Cherukuri Venkata Rao (22 supra). In that case, the plaintiffs obtained decree for specific performance of the agreement. Reliance is also placed on the judgment in case between Cherukuri Venkata Rao (22 supra). In that case, the plaintiffs obtained decree for specific performance of the agreement. The suit was decreed by the appellate Court and as per Clause II of the decree, the plaintiff was directed to pay a sum of Rs.7,000/- towards balance of sale consideration, however, without prescribing the period within which the said deposit has to be made. The matter was carried by way of Letters Patent Appeal and the LPA was dismissed on 23.09.1975. Then the plaintiffs deposited balance of sale consideration of Rs.7,000/- on 16.04.1981 in the trial Court and filed E.P. on 12.10.1981. The defendants filed an application under Sub-section1 of Section 28 of the Specific Relief Act for rescinding the agreement on the ground that the plaintiff had failed to deposit the amount of Rs.7,000/- for a period of seven years. The Executing Court held that the E.P. is barred by limitation. I.A. filed by the Judgment Debtors was allowed rescinding the agreement. If the purchaser does not deposit, the vendor can apply for rescission under sub-section (1) and for other incidental directions under sub-section (2) of Section 28 of the Specific Relief Act. However, if the purchaser complies with the direction but vendor fails to perform his obligations, the purchaser can apply under sub-section (3) for all such reliefs as he is entitled to including execution of sale deed and delivery of possession. 76. Thus, this Court held as follows:- "Treating the petitioner's application as E.P. too does not mean automatically that since it is filed within twelve years, it ought to be ordered automatically. Can it be said that inasmuch as the decree did not prescribe the tim for depositing the balance consideration, it is open to the purchaser to deposit at any time within twelve years? Cannot the concept of 'reasonable period' imported in such a context? This is the question that we have to answer. On this question it is well to remember that the relief of specific performance is an equitable remedy. Indeed, the Specific Relief Act itself is based upon equity, fairplay and good conscience. It has been held by the Supreme Court in H.I.Trust Vs. This is the question that we have to answer. On this question it is well to remember that the relief of specific performance is an equitable remedy. Indeed, the Specific Relief Act itself is based upon equity, fairplay and good conscience. It has been held by the Supreme Court in H.I.Trust Vs. Haridas Mundhra ( AIR 1972 SC 1826 ) that the contract between the parties is not extinguished by the passing of a decree for specific performance, and that the contract subsists notwithstanding the passing of the decree; (vide paragraph-22). The purchaser cannot, and should not be allowed to take unfair advantage of the situation. He must act with reasonable diligence. The application for execution of the sale-deed and/or for delivery of possession, whether by way of an E.P. or an application under section 28(3),must therefore be made within a reasonable time. What is 'reasonable time' is a question of fact to be decided in the facts and circumstances of a given case. No hard and fast rule can be enunciated in that behalf. However, it may be borne in mind that the period of limitation prescribed by the Limitation Act for enforcing an agreement of sale is three years from the date fixed for the purpose, or, if no such date is fixed, when the plaintiff has notice that performance is refused; (Art.54). The said period must be treated as the outer limit, generally speaking. Indeed, it should be mush sooner." 77. In Hameed Joharan's case (21 supra), the Apex Court had dealt the similar issue. The facts of that case are that a preliminary decree for partition was passed on 8-6-1969 and a final decree thereon was passed on 20-11- 1970. The suit being a suit for partition, the parties were under an obligation to furnish the stamp paper for drafting of the final decree and it is on 28-2- 1972, the District Court, Nagapattinam in the erstwhile State of Madras (presently Chennai) issued notice to the parties to furnish stamp papers and granting time till 17-3-1972. The records depict that the decree holder, in fact, did not furnish any stamp paper by reason wherefor, no decree was drafted or finalised. The records depict that the decree holder, in fact, did not furnish any stamp paper by reason wherefor, no decree was drafted or finalised. The factual score further records that the original decree holder died on 17-1-1977 and it is on 26-7-1983 that an application was filed by the legal representatives of the decree holder to implead themselves as additional plaintiffs and on 23-2-1984, the same was ordered and the legal representatives of the original plaintiff were impleaded on 8-3-1984 and after incorporation of the names of the legal heirs in the suit register, an execution application was presented before the District Court on 21-5-1984. In the meanwhile a Civil Revision Petition was filed before the High Court (C.R.P. No.2374 of 1984) against the order of impleadment but the same however, was dismissed on 8-10- 1984. 78. The question that arose for consideration is whether the E.P. filed on 11.12.1984 was barred by limitation. Answering this question in affirmative, the Apex Court held thus:- "Furnishing of stamped paper was an act entirely within the domain and control of the appellant and any delay in the matter of furnishing of the same cannot possibly be said to be putting a stop to the period of limitation being run -- no one can take advantage of his own wrong : As a matter of fact, in the contextual facts no stamp paper was filed until 26-3-1984 - Does that mean and imply that the period of limitation as prescribed under Article 136 stands extended for a period of twelve years from 26th March, 1984 ? The answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of the provisions of the statute. The answer if it be stated to be in the affirmative, would lead to an utter absurdity and a mockery of the provisions of the statute. Suspension of the period of limitation by reason of one's own failure cannot but be said to be a fallacious argument, though however suspension can be had when the decree is a conditional one in the sense that some extraneous events have to happen on the fulfillment of which alone it could be enforced -- furnishing of stamped paper was entirely in the domain and power of the decree holder and there was nothing to prevent him from acting in terms therewith and thus it cannot but be said that the decree was capable of being enforced on and from 20th November, 1970 and the twelve years period ought to be counted therefrom." 79. The Apex Court further observed as follows:- "Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper -- this is opposed to the fundamental principle of which the statutes of limitation are founded." 80. Similar question came up for consideration before this Court in case between Pagadala Pedda Yadaiah (2 supra). The facts of the case are that a preliminary decree for specific performance of agreement of sale was passed on 16.09.1998 directing the defendants to execute the regular sale deed in favour of the plaintiff No.1 in respect of the suit schedule property on receipt of value of sale consideration and also deliver vacant physical possession of the suit schedule property, within three months. In terms of the decree above, the plaintiffs were required to pay the balance of sale consideration within a period that would enable and obligate the defendants to execute a regular sale deed and delivery vacant physical possession of the suit schedule property, within three months i.e. before 05.06.1998. The plaintiffs did not deposit the amount, but on 16.12.1999, more than 11/2 years after the expiry of the time ordained in the decree, filed an Execution Petition for execution of the decree. The E.P. was numbered on 19.01.2000 and passed an order directing the plaintiffs to deposit the balance sale consideration in the Court on or before 08.03.2000. Against this order, CRP No.1498 of 2000 was instituted. The E.P. was numbered on 19.01.2000 and passed an order directing the plaintiffs to deposit the balance sale consideration in the Court on or before 08.03.2000. Against this order, CRP No.1498 of 2000 was instituted. On 03.04.2000, the plaintiffs instituted an application E.A.No.19 of 2000 seeking setting off of the costs awarded against the balance sale consideration payable by them under the decree. The said application was ordered, without notice to the defendant / revision petitioner therein. C.R.P.No.1500 of 2000 is directed against the order in E.A.No.19 of 2000. Meanwhile, the revision petitioners filed an application under Section 28 of the Specific Relief Act for rescission of the agreement of sale deed dated 10.10.1995. 81. In the facts and circumstances of that case, this Court observed as follows:- "Grant of relief under Specific Relief Act is based on equity, fair play and good conscience. Even in case of an E.P. while 12 years is the outer limit, any application for execution preferred technically within a period of 12 years cannot automatically be held to be filed with reasonable diligence. The application should be filed much sooner and within a reasonable time. "What is reasonable time" is a question of fact to be decided in the facts and circumstances of each case" 82. Reliance has also been placed on the judgment in case between Antonysami, appellant Vs. Arulanandam Pillai (d) by LRs. and another31. The facts of that case are that a decree for specific performance of agreement of sale was passed. The decree in paragraph 1 specifically issued a direction to the judgment-debtor to measure and demarcate the boundaries of 13 grounds and 491 sq. ft. of land on or before 23-9-1966. In para 2 of the decree the Court directed the decree holder to deposit in the Court on or before 23-9-1966 the balance of the sale price for 13 grounds 491 sq. ft. of land measured and demarcated. ft. of land on or before 23-9-1966. In para 2 of the decree the Court directed the decree holder to deposit in the Court on or before 23-9-1966 the balance of the sale price for 13 grounds 491 sq. ft. of land measured and demarcated. In paragraph 3 of the decree is incorporated the direction that on such measurement and demarcation and on deposit of the amount fixed in the decree, the judgment-debtor was to execute the sale deed in respect of the suit sites in favour of the decree-holder at her cost as agreed and in default the Court would execute the sale deed on application of the decree-holder and the cost of the execution of such sale deed was to be recovered from the judgment- debtor. The decree-holder deposited the balance consideration before 23-9-1966. However the demarcation and measurement was done by the judgment-debtor only in 1973. The decree-holder sought to execute the decree in 1980 contending that it was within 12 years of 1973 the date the land was measured and demarcated by judgment debtor. 83. In the facts and circumstances of that case, the Apex Court held as follows:- "If the direction given in the decree to the judgment-debtor to measure and demarcate the land by that date (23-9-1966) was not complied with the decree-holder was free to execute the decree. The steps to be taken by the decree-holder in this regard are provided in O. 21, R. 34(1) CPC. A specified date was mentioned in the decree for the judgment-debtor to carry out the aforementioned direction i.e. 23-9-1966 and if he failed to carry out the direction it was open to the decree-holder to seek help of the executing Court for measurement and demarcation of the land, and thereafter, to get the sale deed executed by the judgment-debtor if possible or by the Court if necessary. The decree-holder for reasons best known to him did not choose to execute the decree till April 1980. On a fair reading of the decree in the context of the provisions of Art. 136 of the Limitation Act the conclusion is inescapable that the execution petition was filed after expiry of the period of limitation prescribed under the Act." 84. Learned counsel for the petitioner has also relied on judgment in case between Manohar Shankar Nale and others Vs.Jaipalsing Shivlalsing Rajput and others32. Learned counsel for the petitioner has also relied on judgment in case between Manohar Shankar Nale and others Vs.Jaipalsing Shivlalsing Rajput and others32. The facts of that case are that a Second Appeal filed by the plaintiff therein was decreed. Consequently, the plaintiffs suit for possession of 0-32 guntas area was decreed and further held that the plaintiff is also entitled to enquiry under the provisions of the Order XX Rule 12(1) CPC for mesne profit in respect of the suit land from the ate of the suit till the actual delivery of possession. An application for review thereof was filed by the predecessor-in-interest of the appellants. The said review petition was dismissed by an Order dated 12.8.1985. Appellants preferred a special leave petition there against before the Apex Court and leave having been granted, the matter was marked as Civil Appeal No. 1836 of 1986. By an Order dated 21.3.1988, the Apex Court passed an order of stay in the following terms: "The Application for Stay above mentioned being called on for hearing before this Court on the 21st day of March, 1988 upon hearing Counsel for the parties herein. This Court Doth Order that the order of this Court dated the 8th May, 1986 passed in Civil Miscellaneous Petition No. 10447 of 1986 be and is hereby confirmed and that pending the hearing and final disposal by this Court of the appeal above mentioned, the operation of the Order dated the 1st July, 1985 of the High Court of Judicature at Bombay (Nagpur Bench) Nagpur in Miscellaneous Civil Application No. 134 of 1984 in Second Appeal No. 158 of 1972 be and is hereby stayed and the Civil Judge, Junior Division, Malkapur, Maharashtra be and is hereby directed to ascertain the amount of mesne profits which shall be deposited by the appellant herein." The said appeal, however, came to be dismissed as being incompetent by this Court opining that no appeal lay in terms of Order 47 Rule 7 of the Code of Civil Procedure rejecting a review application. 85. Considering the facts and circumstances of the case, the Apex Court held as follows:- "The decree passed by the High Court in the aforementioned Second Appeal No. 158 of 1972 is in two parts. The Court granted a decree for possession. In respect of an area measuring 32 guntas, as delineated in the map Exh. 85. Considering the facts and circumstances of the case, the Apex Court held as follows:- "The decree passed by the High Court in the aforementioned Second Appeal No. 158 of 1972 is in two parts. The Court granted a decree for possession. In respect of an area measuring 32 guntas, as delineated in the map Exh. 30, out of Survey No. 59/1 measuring 3 acres 12 guntas. Respondent was also found to be entitled to an enquiry in terms of Order 20 Rule 12 of the Code of Civil Procedure in regard to computation of mesne profit from the date of the institution of the suit, till the date of the actual delivery of possession. It is therefore, not correct to contend that the decree was a composite one. The proceeding for computation of mesne profit required to be undertaken in terms of Order 20 Rule 12 of the Code of Civil Procedure was subject to institution of a proceeding but, by reason thereof, the execution of the decree in regard to the possession of 30 gunthas of land was not required to be awaited till the outcome." "It is also incorrect to contend that in a case of this nature, namely where a review petition was dismissed, the doctrine of merger will have any application whatsoever." "It is one thing to say that the respondent was entitled to file an application for review in terms of Section 114 read with Order 47 Rule 1 of the Code of Civil Procedure, but it is another thing to say that the decree passed in favour of the respondent merged with the order dismissing the review application. Matter might have been different, if the review application had been allowed either wholly or in part in terms whereof an application for execution of the decree could have been filed only in terms of the modified decree." "It is not the contention of the respondent that any order of stay was passed in the review application. There was, thus, no bar in proceeding with the execution case." 86. The Apex Court finally held that the Execution Petition was barred by limitation. 87. There was, thus, no bar in proceeding with the execution case." 86. The Apex Court finally held that the Execution Petition was barred by limitation. 87. Coming to the facts of the instant case, it is true that the first respondent filed an application to condone the delay in deposit of balance of sale consideration in I.A.No.302 of 2001 and the said application was allowed on 17.09.2002 and that he had deposited the balance of sale consideration on 20.09.2002. It is clear that this Court, by order dated 09.11.2009, dismissed the revision in C.R.P.No.3124 of 2008 and confirmed the said order of the Court below. Thus, it is clear that delay in depositing the balance of sale consideration has been condoned. This shows that there was no delay in deposit of balance of sale consideration amount. Merely because the respondent is permitted to deposit the balance of sale consideration amount after about 10 years after the date of decree, whether the court cannot consider the question of limitation in filing the EP, whether it would wipe away the fact that EP is hopelessly barred by limitation, whether it would give life to EP which is already dead by the fact that it is barred by limitation. Merely because the respondent/ decree-holder had deposited the balance of sale consideration on 20.09.2002 can it be said that the decree became enforceable from that day, and it would bring the Execution Petition within the period of limitation. Admittedly, a decree was passed on 17.09.1992 for specific performance of the agreement of sale. The decree was enforceable on condition of deposit of sale consideration amount which was within the power of the respondent. Nothing prevented him to deposit the amount immediately after passing the decree. Therefore, the decree became enforceable immediately after expiry of the period of two months after the date of decree. Therefore, it cannot be said that the decree became enforceable only from the date of deposit of sale consideration amount. Admittedly, the present Execution Petition has been filed on 24.08.2005. Thus the Execution Petition has been filed clearly beyond the period of twelve years. Therefore, it cannot be said that the decree became enforceable only from the date of deposit of sale consideration amount. Admittedly, the present Execution Petition has been filed on 24.08.2005. Thus the Execution Petition has been filed clearly beyond the period of twelve years. Since it was within the purview of the first respondent / decree-holder to deposit the balance of sale consideration, subsequent deposit of balance of sale consideration amount, though permitted by the Court, will not come to the rescue of the first respondent/decree-holder and will not save the limitation. In view of the same, I hold that the Execution Petition filed by the first respondent is barred by limitation. 88. In the circumstances, the Court below ought to have considered that the respondent/decree-holder, by not whispering anything about the pendency of Insolvency Proceedings, committed fraud by making false representation. The Court below also ought to have considered that even after the Insolvency Petition which was allowed on 24.11.1998 to which he is a party, the respondent/decree-holder did not obtain the leave of the Court, in which the Insolvency Petition was pending, to proceed with the decree and that he had not obtained the leave of the Insolvency Court before filing I.A.No.302 of 2001. Since the respondent/decree-holder filed E.P.(Sr)No.2394 of 1996 and subsequently withdrawn the said application as not pressed on 07.07.2000 and then filed I.A.No.302 of 2001 during the pendency of the appeal filed against the Insolvency Petition, he cannot claim that the Insolvency Proceedings came in his way of filing the Execution Petition. Thus, the Courts below failed to consider that the respondent/decree holder is guilty of suppression of facts and thereby committed fraud and that fraud vitiates entire proceedings. The Courts below also failed to consider that the Execution Petition is hopelessly barred by limitation. 89. In view of the above elaborate discussion and for the foregoing reasons, the Civil Revision Petition is allowed setting aside the impugned order of the Court below. However, in the circumstances of the case, I desist from making any order as to costs.