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2011 DIGILAW 1078 (PNJ)

Satnam Singh v. Harbans Kaur

2011-04-20

RAM CHAND GUPTA

body2011
JUDGMENT Mr. Ram Chand Gupta, J.:- The present revision petition has been filed under Article 227 of the Constitution of India for quashing of impugned order dated 5.6.2010, passed by learned Civil Judge, Junior Division, Phul, Annexure P4, vide which application filed by petitioners-plaintiffs for extension of time to deposit the balance sale consideration was dismissed. 2. I have heard learned counsel for the petitioners and have gone through the whole record carefully including the impugned order passed by learned trial Court. 3. Brief facts relevant for the decision of present revision petition are that suit for specific performance of agreement to sell dated 3.9.2002 regarding property in dispute was filed by present petitioners-plaintiffs against respondent-defendant, which was decreed in favour of petitionersplaintiffs, vide judgment and decree dated 7.2.2007 and they were directed to deposit the remaining amount in the court within one month, in accordance with agreement to sell dated 3.9.2002 and that defendant was directed to get the sale deed executed within two months and to hand over the possession to the petitioners-plaintiffs accordingly, of the suit property. 4. Appeal filed against the said judgment and decree was also dismissed by learned Additional District and Sessions Judge, Bathinda, vide judgment dated 1.6.2007, and thereafter present petitioners-plaintiffs filed an execution application before learned Civil Judge, Junior Division, Phul, on 12.5.2007 to execute the judgment and decree dated 7.2.2007. 5. Present petitioners-plaintiffs did not deposit the remaining sale consideration within time stipulated in the judgment and decree dated 7.2.2007 and, however an application was moved on behalf of the petitioners-plaintiffs for extension of time to deposit the balance sale consideration. The balance sale consideration was to be deposited till 7.3.2007 and, however, application for extension of time was filed on 4.4.2007. Despite that learned trial Court allowed application filed by petitioners-plaintiffs by exercising power under Section 148 read with Section 151 of the Code of Civil Procedure (hereinafter to be referred as ‘the Code’) and 15 days’ time was granted to them to deposit the remaining sale consideration in the Court in terms of judgment and decree dated 7.2.2007 vide order dated 12.12.2009, Annexure P2. However, petitionersplaintiffs did not comply with the said order and did not deposit the remaining sale consideration within stipulated period of 15 days. The amount was to be deposited as per the period extended by learned Executing Court on or before 27.12.2009. However, petitionersplaintiffs did not comply with the said order and did not deposit the remaining sale consideration within stipulated period of 15 days. The amount was to be deposited as per the period extended by learned Executing Court on or before 27.12.2009. However, neither the order was complied with nor any application for extension of time was filed before expiry of the said date. Rather an application was filed on 6.1.2010 by counsel for petitioners-plaintiffs, which is Annexure P3. A very perusal of the said application shows that the same is a vague one mentioning therein that some close relative of petitioners-decree-holders had expired and, hence, they were unable to appear in the Court. The application was not accompanied by any affidavit of petitioners-plaintiffs as well as the name of the relative, who was stated to be expired, had also not been mentioned. Hence, in view of this vague ground taken in the application, the same was declined by learned Civil Judge, Junior Division, Phul, vide impugned order by observing as under:- “ Heard on the application under Section 148 read with Section 151 CPC moved by the decree holder, praying for further extension of time to deposit the balance sale consideration. It need to be noted that at the outset this Court vide its judgment and decree dated 7.2.07 had directed the plaintiff/decree holder to deposit the balance sale consideration in the Court within a period of one month of the judgment and decree. However, the plaintiff/decree holder did not deposit the balance sale consideration within the above noted stipulated period. Further on 5.4.07, the decree holder alongwith instant execution application filed an application under Section 148 read with Section 151 CPC, praying for extension of time to deposit the balance sale consideration. The said application was allowed vide order dated 12.12.09 and the decree holder was granted extension of 15 days from the date of order to deposit the balance sale consideration in the Court. Again, the decree holder did not deposit the balance sale consideration in the Court within the stipulated period of 15 days. On dated 6.1.10, the decree holder moved the instant application, praying for further extension of time to deposit the balance sale consideration. Again, the decree holder did not deposit the balance sale consideration in the Court within the stipulated period of 15 days. On dated 6.1.10, the decree holder moved the instant application, praying for further extension of time to deposit the balance sale consideration. The counsel for the applicant/decree holder urged that as one of the relatives of decree holder had died, hence, he could not deposit the balance sale consideration within the stipulated period of 15 days. The counsel for the JD urged that the decree holder has put forth a concocted story. The instant application is not maintainable and is liable to be dismissed. As noted herein before, the Court, vide its order dated 12.12.09, had granted extension of 15 days to deposit the balance sale consideration in the Court. In terms of said order, the balance sale consideration was to be deposited in the Court on or before 27.12.09. The instant application was moved on 6.1.10. There is no averment whatsoever in the instant application why the decree holder could not deposit the balance sale consideration in the Court on or before 27.12.09. On 6.1.10, the counsel for the decree holder moved the instant application, submitting that one of the relatives of decree holder has died and the decree holder has informed him telephonically about his incapacity to come to the Court. Accordingly, the decree holder may be permitted to deposit the balance sale consideration. The perusal of instant application reveals that it is not the case of decree holder that he was incapacitated by one or the other reasons from depositing the balance sale consideration within the stipulated period of 15 days. Notably, the alleged death of one of the relatives of decree holder took place on dated 6.1.10 and not during the stipulated period of 15 days. Moreover, the said application is not supported by any affidavit or other documentary proof. For the foregoing reasons, this Court finds no merit in the instant application, which is dismissed accordingly. In view of the fact that the decree holder has failed to deposit the balance sale consideration in the Court in terms of the judgment and decree dated 7.2.07, the present execution application is disposed of accordingly. For the foregoing reasons, this Court finds no merit in the instant application, which is dismissed accordingly. In view of the fact that the decree holder has failed to deposit the balance sale consideration in the Court in terms of the judgment and decree dated 7.2.07, the present execution application is disposed of accordingly. File be consigned to the record room.” It has been contended by learned counsel for the petitionersplaintiffs that learned Executing Court was having power under Section 148 read with Section 151 Code to extend time to deposit the remaining sale consideration, particularly, in view of the fact that there is no direction in the decree that on failure to deposit the balance sale consideration, the suit of plaintiff was to be dismissed. On the point he has placed reliance upon a number of judgments reported as Mohinder Singh v. Gurdial Singh, 1997 (1) PLR 73, Harbans Singh Grewal v. Puran singh (deceased) by his LRs, 1990(2) PLR 267, Shobha Vilas Thakare v. Narendra Tumdeo Hulke, 2000(2) Civ.C.C.488, Suraj Singh v. Rajnarain Lal and another, 1984 AIR (Patna) 155, Gurbachan Singh v. Bachan Singh and others, 1997(1) PLR 355, Jagan Nath and another v. Lekh Ram, 2000(1) Current Law Journal 418, and Sneh Lata Verma v. Baldev Raj Monga, 1998(2) PLR 332. 6. It has further been contended that petitioners-plaintiffs could not deposit the remaining sale consideration within time due to death of some of their relative and, hence, it is contended that learned Executing Court has committed illegality in passing the impugned order declining the request of petitioners-plaintiffs for extension of time to deposit the remaining sale consideration. 7. So far as legal proposition held in the aforementioned authorities is concerned, there is no dispute. Law is well settled that in a case where the Court passing the decree imposes a condition for payment of balance sale consideration within stipulated period and, however, did not impose any condition in the event of default, the Court is having jurisdiction to extend time to deposit the balance sale consideration under Section 148 read with Section 151 of the Code. However, in the present case, the said power was exercised by learned Executing Court and the first application filed by petitioners-plaintiffs for extension of time to deposit the remaining sale consideration was accepted and petitioners-plaintiffs were directed to deposit the balance sale consideration within 15 days of order dated 12.12.2009 and, however, even the said order has not been complied with. The judgment and decree is dated 7.2.2007. However, even after expiry of more than four years, the balance sale consideration has not been deposited by petitioners-plaintiffs. Application for second extension of time has also not been filed before expiry of 15 days allowed by learned Executing Court vide order dated 12.12.2009, Annexure P3, rather the same was filed after expiry of the said period, i.e., on 6.1.2010, and the said application was also a vague one without any affidavit. As already stated above, the ground taken is that there was death of some close relative, without mentioning the name of that relative and without filing any affidavit in this regard. The said plea was contested by the judgment debtor on the plea that the story has been concocted by petitioners-decree holders and hence, application is liable to be dismissed. Hence, cogent reasons have been given by learned Executing Court for dismissing the application for granting further extension of time for depositing the remaining sale consideration. 8. In view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Executing Court in dismissing the request of petitioners-plaintiffs for second extension of time for depositing the remaining sale consideration or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. 9. Moreover, law has been well settled by Hon’ble Apex Court in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. 10. Hence, the present revision petition is, hereby, dismissed being devoid of any merit. ------------0.S.L.0------------