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2012 DIGILAW 651 (MP)

Anil Kumar Sahu v. Bhoora

2012-07-02

A.K.SHRIVASTAVA

body2012
ORDER 1. Feeling aggrieved by the impugned order dated 28.1.2005 (Annexure-P/4) passed by learned Executing Court holding that the plaintiff is not entitled to get the decree of specific performance of contract executed, this writ petition has been filed under Article 227 of the Constitution of India. 2. On bare perusal of the judgment and decree dated 21.9.2004 passed by learned Civil Judge, Class-1, Chhatarpur in Civil Suit No. 1-A/2004 it is gathered that a decree of specific performance of contract was passed in favour of the plaintiff against respondents by directing the plaintiff that balance amount of consideration Rs. 9,000/- be paid to the defendants/respondents till 30.10.2004 and in case the said amount is not accepted by them, it may be deposited in Court. 3. The contention of learned counsel for petitioner-decree holder is that within time on 20.10.2004 the said amount of Rs. 9,000/- was sent by money-order to defendants/respondent but the same was refused by them. Eventually, on 6.12.2004 execution application was filed and an application was also submitted to permit the plaintiff/petitioner to deposit balance amount of consideration Rs. 9,000/- in the Court. This application of petitioner was rejected and it was held by the Executing Court that the plaintiff is entitled for return of earnest money alongwith interest and the decree of specific performance of contract cannot be executed. Against this order, the decree holder has filed this petition. 4. I have heard Shri Satish Shrivastava, learned counsel for petitioner and having heard him, I am of the view that this petition deserves to be allowed. 5. According to learned Executing Court since immediately after the refusal of balance amount of consideration by respondent/defendants, the plaintiff/petitioner has not deposited the said amount, therefore, the decree passed in his favour for specific performance of contract cannot be accepted. To me, the said finding is ex facie illegal. The Executing Court cannot go beyond the decree. On bare perusal of the judgment and decree only this much is gathered that plaintiff was required to pay the balance consideration Rs. 9,000/- to defendants No. 1 and 2 till 30.10.2004. Nowhere in the judgment and decree, it has been mentioned that if the balance amount is not accepted by the defendants/respondents on the very next day it should be deposited in the Court. Indeed on 20.10.2004 the plaintiff sent the balance amount of consideration Rs. 9,000/- to defendants No. 1 and 2 till 30.10.2004. Nowhere in the judgment and decree, it has been mentioned that if the balance amount is not accepted by the defendants/respondents on the very next day it should be deposited in the Court. Indeed on 20.10.2004 the plaintiff sent the balance amount of consideration Rs. 9,000/- to defendants by money-order and same has been refused by them and therfore on 6.12.2004 an execution application has been filed by the plaintiff praying that balance amount of consideration be permitted to be deposited in the Court so that decree of specific performance of contract may be executed, I am of the view that the permission should have been granted by the Executing Court. Hence, the impugned order suffers from illegality and same is hereby set aside. 6. Resultantly, this writ petition succeeds and is hereby allowed. The impugned order passed by the Executing Court is set aside. The Executing Court shall now permit the petitioner/plantiff to get the said amount deposited in the Court and after depositing the said amount, the decree of specific performance of contract passed in favour of plaintiff may be executed. 7. This petition is allowed with costs. Counsel fee Rs. 1,000/- if precertified.