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2012 DIGILAW 888 (AP)

Agnipalli Hanumantha Rao v. Vegi Venkata Lakshmi

2012-09-18

N.RAVI SHANKAR

body2012
ORDER 1. Heard Sri P.S.P. Suresh Kumar, the learned counsel appearing for petitioners and Sri B. Nagi Reddy, the learned counsel appearing for respondent. 2. Having regard to the controversy in these two revisions, and the fact that parties to both are same, they can be disposed of by this common order. Before the points that arise in these revisions are stated, the circumstances which led to their filing should be noted. 3. Petitioners in these two revisions are defendants in O.S.No.535 of 1996 on the file of the Court of the II Additional Senior Civil Judge, Visakhapatnam. The said suit was brought by the respondent (plaintiff) for specific performance of an agreement of sale dated 28.08.1993 in respect of certain immovable property said to have been executed by the petitioners in his favour. Hereinafterwards for convenience the parties shall be referred to as they are arrayed in the suit. 4. The said suit ended in an ex parte decree dated 31.07.2004 passed by the aforesaid court as trial court. That decree became final. In the said decree the trial court directed the defendants to execute registered sale deed in pursuance of the suit agreement in favour of the plaintiff at the expenses of the latter within 45 days from the date of decree. The other clauses in the decree relate to deposit of balance sale consideration by the plaintiff in the trial court and further stipulate that if defendants fail to execute and register the sale deed as per the agreement and terms of the decree the plaintiff shall be at liberty to get the sale deed executed through the process of court. 5. As already mentioned the date of decree is 31.07.2004. While matters stood thus, the plaintiff filed an application E.A.No.212 of 2008 along with Execution Petition (EP) (subsequently registered as E.P.No.71 of 2008) on 23.04.2008 i.e. nearly four years after the decree for depositing the balance sale consideration. The said E.P.No.71 of 2008 was again filed in the Court of II Additional Senior Civil Judge, Visakhapatnam, which was also acting as the executing Court and this is important. The plaintiff also filed another application E.A.No.213 of 2008 in E.P.No.71 of 2008 to condone the delay in depositing the balance sale consideration. The said E.P.No.71 of 2008 was again filed in the Court of II Additional Senior Civil Judge, Visakhapatnam, which was also acting as the executing Court and this is important. The plaintiff also filed another application E.A.No.213 of 2008 in E.P.No.71 of 2008 to condone the delay in depositing the balance sale consideration. From the certified copies of the EAs which are filed by defendants, it is seen that the Superintendent of the executing court put up an office note in E.A.No.213 of 2008 for condoning the delay sought for by the plaintiff in depositing the balance sale consideration. 6. The trial court acting as executing court allowed that application by endorsement “permitted” on 03.05.2008. Similarly, in EA No.212 of 2008 filed seeking permission to deposit the remaining balance sale consideration the executing court on the same date i.e. on 03.05.2008 allowed that request again making an endorsement “permitted” indicating that it has granted permission to the plaintiff/decree holder to deposit the balance consideration in the court. No reasons have been recorded in the above E.As by the executing court for passing above orders and in fact no notice was also ordered in the said applications to defendants. 7. Defendants have filed CRP No.4483 of 2010 questioning the order condoning the delay in depositing the balance sale consideration in E.A.No.213 of 2008 in E.P.No.71 of 2008 and similarly they filed CRPNo.4485 of 2010 questioning the grant of permission to the plaintiff for deposit of balance sale consideration. 8. The main contention of Sri P.S.P. Suresh Kumar which is raised as the first point in these revisions is that the court which passed the decree alone can grant extension of time for depositing the balance sale consideration if the time for depositing it in terms of a decree granted in a specific performance suit has expired. He says that the executing court has no such power and even if the trail court acts as an executing court also it cannot grant such extension on execution side. He says that the executing court has no such power and even if the trail court acts as an executing court also it cannot grant such extension on execution side. In the present case, Sri Suresh Kumar pointed out that the terms of the decree read that the sale consideration should be deposited within 45 days and that plaintiff should execute the sale deed within the same period and therefore there was delay of nearly 4 years on the part of the plaintiff in depositing the sale consideration and any application for condonation of this delay can be considered only by the trial court and not the executing court. 9. In support of his above first contention, he relied upon Section 28 of the Specific Relief Act, 1963 (for short Act), a Division Bench decision of this Court given in Cherukuri Venkata Rao v. Brahmojosyula Bala Gangadhara Sharma( 1987 (2) ALT 229 ) and a decision of the Supreme Court in Bhupinder Kumar v. Angrej Singh ((2009) 8 SCC 766). 10. His second contention which is raised as second point is that even assuming that the executing court has that power, it should have granted notice to defendants on an application for extension of time and in the present case the executing court allowed the application of the plaintiff for extension of time without notice to defendants and this is bad and consequently the order passed in the other application should also be set aside. 11. On the other hand, Sri B.Nagi Reddy argued that there is no time limit fixed in the decree for the plaintiff to deposit the balance sale consideration and therefore the plaintiff cannot be said to have committed any delay in depositing the balance sale consideration and that in fact the condone delay application filed by the plaintiff was not necessary and the orders passed by court below cannot be faulted. He says that even the executing court can grant such permission and therefore there are no merits in these revisions. 12. The relevant facts and circumstances and the contentions of both sides relevant to the points raised in these revisions have already been set out supra. It may be noted that Rule 32 of Order XXI of the Code of Civil Procedure, 1908 (for short Code), relates to execution of a decree for specific performance and it lays down the ordinary procedure. It may be noted that Rule 32 of Order XXI of the Code of Civil Procedure, 1908 (for short Code), relates to execution of a decree for specific performance and it lays down the ordinary procedure. Apart from this, Section 28 of the Act is also relevant to the questions raised. That statutory provision provides for consequences where a plaintiff i.e. purchaser after obtaining a decree for specific performance fails to comply with the terms of the decree regarding payment or deposit of balance sale consideration within the time prescribed and also other circumstances which can be considered by the court even for rescinding the contract or the decree. Whether the word “court” used in Section 28 should be treated as the trial court which passed the decree or the executing court is the question. This Section 28 will be referred to a little later after considering the contentions of Sri Nagi Reddy on facts on the question of delay. 13. Regarding the delay in deposit of balance sale consideration on the part of the plaintiff, it may be noted that the very first clause in the decree granted for specific performance would show that the defendants are bound to execute the registered sale deed in pursuance of the suit sale agreement in favour of the plaintiff at the latter’s expense within 45 days from the date of the decree. In other words, the above term can be impliedly understood to mean that both parties have to comply with the terms of the decree within 45 days i.e. to say that plaintiff should deposit the balance sale consideration within 45 days from the date of decree and that defendants have also to execute the sale deed within that period. 14. What should be noted is that defendants cannot be understood to have been directed to execute the sale deed without deposit of balance sale consideration as no vendor would be ready for that and in fact it would be unjust also to give directions to the defendants to execute the sale deed without the balance sale consideration being deposited in the court as it is the right of the defendants i.e. the vendors to claim and receive the same before executing the sale deed. 15. 15. It is clear that the plaintiff has rightly understood the above term of the decree properly i.e. to say that he has to deposit the balance sale consideration within 45 days. It was with that right understanding the plaintiff filed E.A.No.213 of 2008 seeking condonation of the delay for deposit of the balance sale consideration. Thus the contention of Sri Nagi Reddy that there was no delay and the plaintiff could deposit balance sale consideration at any time as per the terms of the decree cannot be accepted. 16. Now coming to the point whether plaintiff’s application for extension of time for deposit of balance sale consideration is maintainable in executing court, Section 28 of the Act is relevant and it reads as follows. “Section 28:- Rescission in certain circumstances of contracts for the sale or lease of immovable property the specific performance of which has been decreed: (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the Court may allow, pay the purchase-money or other sum which the Court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the Court may, by order, rescind the contract either so far as regards the party in default or altogether as the justice of the case may require. (2) Where a contract is rescinded under sub-section (1) the court, (a) shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and (b) may direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract. (3) If the purchaser or lessee pays the purchase-money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs namely:- (a) the execution of a proper conveyance or lease by the vendor or lessor; (b) the delivery of possession or partition and separate possession of the property on the execution of such conveyance or lease. (4) No separate suit in respect of any relief which may be claimed under this Section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be. (5) The costs of any proceedings under this Section shall be in the discretion of the court.” 17. A perusal of sub-section (1) of Section 28 of the Act shows that where there is a delay on the part of the plaintiff/ purchaser in complying with the terms of the decree or the time within which the balance sale consideration is to be deposited, he can deposit the same within the time granted by the court which passed the decree or such further time as may be extended by it. The Hon’ble Supreme Court in Bhupinder Kumar’s case (2 supra) dealt with the scope of Section 28 of the Act and reiterated that the power to extend the time for depositing the balance sale consideration is always available and given only to the trial court i.e. the court which passed the decree. The other provisions of Section 28 would show that the trial court can also rescind the contract or the decree granted where the conduct of the plaintiff/purchaser warrants such a course and this is an added circumstance to show that the power to entertain applications for extension of time for deposit of balance sale consideration is given only to the trial court which passed the decree. 18. In the present case, the plaintiff filed interlocutory application on execution side before the executing court seeking condonation of delay and extension of time for depositing balance sale consideration by filing an interlocutory application for that purpose along with execution petition. 18. In the present case, the plaintiff filed interlocutory application on execution side before the executing court seeking condonation of delay and extension of time for depositing balance sale consideration by filing an interlocutory application for that purpose along with execution petition. It may be that in the present case, the Court of II Additional Senior Civil Judge, Visakhapatnam, which passed the decree also acted as executing court but having regard to the provisions of Section 28 of the Act that power to grant time or further time is not given to the executing court but it is given to the trial court which passed the decree. Therefore, the plaintiff ought to have filed his applications if any for extension of time only in the suit before the Court of II Additional Senior Civil Judge, Visakhapatnam which passed the decree, as that court alone would have power to entertain such an application and not before the executing court. 19. The executing court can therefore be said to have acted without jurisdiction in the present case in entertaining E.A.No.213 of 2008 and also the E.P. In fact the E.P. must also be held not maintainable unless the trial court which passed the decree has condoned the delay in depositing the balance sale consideration. It therefore follows that the first point should be answered in favour of the defendants/petitioners. 20. The second point raised by Sri P.S.P. Suresh Kumar relates to the failure of the executing court to give notice to defendants in the interlocutory applications filed by the plaintiff in the execution application on which it passed the impugned orders and also passing those orders without reasons. This second point in fact does not arise in these revisions as both the revisions have to succeed on the ground of lack of jurisdiction of the executing court to entertain the present applications and also the E.P. as it is not necessary to go into the merits of the same. The decision in Cherukuri Venkata Rao’s case (1 supra) relied upon by the learned counsel for the defendants also relates to a case where the balance sale consideration was deposited with delay in the trial court but ultimately the E.P. was dismissed on the grounds recorded therein. The Supreme Court decision in Bhupinder Kumar’s case (2 supra) is directly on the point on the question of jurisdiction and supports the defendants. The Supreme Court decision in Bhupinder Kumar’s case (2 supra) is directly on the point on the question of jurisdiction and supports the defendants. Hence, it is not necessary to discuss other aspects in this matter. 21. Accordingly, for the aforesaid reasons, both the revisions are allowed and the impugned orders are set aside and the E.P. is also dismissed. It goes without saying that it is always open for the plaintiff to workout his remedies before the court which passed the decree seeking condonation of delay in depositing balance sale consideration and that court may dispose of those applications in accordance with law after giving due opportunity to the defendants. No costs. Miscellaneous petitions, if any pending in these revisions, shall stand closed.