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2013 DIGILAW 788 (JHR)

Zahida Khatoon v. Md. Rafique

2013-07-04

P.P.BHATT

body2013
ORDER Petitioners, by way of filing the present petition under Article 227 of the Constitution of India, have prayed for quashing and setting aside the order dated 18.09.2004 passed by the learned Additional Munsif, Hazaribagh in Execution Case No.6 of 1994 (Annexure-4), whereby the petition filed by the judgment debtors/petitioners under Section 47 of the Specific Relief Act, 1963 for recession of the contract and for dismissal of the execution case has been rejected. 2. Heard learned counsel for the petitioners as well as respondents at length and perused the impugned order as well as other materials placed on record. 3. Learned counsel for the petitioners submitted that the order passed by the learned court below, while rejecting the petition filed by the petitioners under Section 47 of the Specific Relief Act, is ab initio void and illegal. It is further submitted that the petitioners were directed to deposit the balance amount of consideration, amounting to Rs.925/- (Rs. Nine hundred Twenty five only) within thirty days from the judgment and decree passed in Title Suit No.53 of 1974 but, the decree holder failed to deposit the same within the stipulated time and for non-compliance of the order, the decree could not be executed. 4. Learned counsel for the petitioners by referring the documents on record pointed out that the respondents has deposited the amount of Rs.925/- (Rs. Nine hundred Twenty five) on 16.12.1998 after the decision of the Hon'ble Supreme Court in S.L.P. and, therefore, this conduct itself indicates that the respondents have failed to deposit the said amount within the stipulated time as directed by this Court. The learned counsel for the petitioners in support of his submissions has referred to and relied upon the decision rendered in the case of V.S. Palanichamy Chettiar Firm Versus C. Alagappan and Anr. reported in AIR 1999 SC 918 . 5. As against this, the learned counsel appearing on behalf of respondents submitted that the petitioners with a view to deprive the original plaintiff from enjoying the fruits of decree the petitioner made attempt from time to time and tried to create hurdles in execution of the decree. It is further submitted that the grounds raised by the petitioners are baseless and without any substance. It is further submitted that the grounds raised by the petitioners are baseless and without any substance. The learned counsel for the respondents further submitted that the requisite amount was deposited within the stipulated time as per the judgment and order passed by the court below. In support thereof, the learned counsel for the respondents by referring Annexure-A to the counter affidavit, pointed out that the amount of Rs. 925/- was deposited vide Civil Challan No.317 dated 30.03.1978. Learned counsel for the respondents pointed out by referring paragraph 3 of the order dated 18.09.2004 passed by the learned Additional Munsif, Hazaribagh, that the court below has taken into consideration fact about timely deposit of money. Learned counsel for the respondents further submitted that at the time of delivering the judgment of Second Appeal No.134 of 1979 (R) this Court in paragraph 12 of the judgment has observed that the plaintiff deposited the balance amount within stipulated time as fixed by the original court and this observation was made on the basis of verification of record, as observed in paragraph 3. 6. Learned counsel for the respondents has also referred to and relied upon the following judgments : 1. (1982)1 SCC 525 2. AIR 2007 SC 1514 7. Considering the aforesaid rival submissions of the parties and from perusal of materials placed on record, it appears that the judgment and decree came to be passed in favour of the respondents-original plaintiff in a suit for specific performance. In terms of the judgment and decree the respondents-original plaintiff was required to deposit the balance amount to the tune of Rs.925/- within thirty days from the date of judgment. On perusal of endorsement made by the Nazir of the court on the reverse side of Form No.(M)39 Annexure- B to the rejoinder as well as Annexure-A to the counter affidavit, it appears that the said amount has been deposited vide Challan No.317 on 31.03.1978. The said fact is also getting support from the order passed by the learned Munsif, Hazaribagh dated 18.09.2004. Paragraph-3 of the said order clearly indicates that the balance amount as ordered by the court was deposited within stipulated time and the said fact has been observed on the basis of verification of record. The similar observations were also made by this Court while dealing with the Second appeal No.134 of 1979. Paragraph-3 of the said order clearly indicates that the balance amount as ordered by the court was deposited within stipulated time and the said fact has been observed on the basis of verification of record. The similar observations were also made by this Court while dealing with the Second appeal No.134 of 1979. The relevant abstract of paragraph 12 of the judgment reads as under :- 12. A feable attempt was made by Mr. Eqbal to show that there was no readiness on the part of the plaintiff in performing his part as the plaintiff failed to deposit the balance amount as ordered by the court within the stipulated time but on verification of the record it could be found that such submission has no basis as the money was deposited by the plaintiffs-respondent within the stipulated period as fixed by the original court. 8. Thus, upon going through the materials on record, it becomes crystal clear that the balance amount has been deposited within stipulated time as ordered by the court and the said fact has been narrated in the judgment and order passed by this Court in Second Appeal and that to after proper verification of the record and there is no reason to disbelieve the same. I have also gone through the judgment which has been cited by the learned counsel for the petitioners, which is reported in AIR 1999 SC 918 . But the said judgment is not applicable to the facts of the present case. 9. The decision cited by the learned counsel for the respondents reported in (1982) 1 SCC 539 is applicable the facts and circumstances of the present case. Paragraph 29 of the said judgment reads as under :- 29. Procedure is meant to advance the cause of justice and not to retard it. The difficulty of the decree-holder starts in getting possession in pursuance of the decree obtained by him. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court. 10. The another decision cited by the learned counsel for the respondents reported in AIR 2007 SC 1514 also appears to be relevant for the decision of the present case. The judgment-debtor tries to thwart the execution by all possible objections. In the circumstances narrated above, we do not find any fault with the order passed by the High Court. 10. The another decision cited by the learned counsel for the respondents reported in AIR 2007 SC 1514 also appears to be relevant for the decision of the present case. The observations and ratio laid down by the Hon'ble Supreme Court, which is stated in paragraph 10 and 11 of the said judgment is relevant for the present case and, therefore, the same are reproduced herein below:- 10. The decree for specific performance has been described as a preliminary decree. The power under Section 28 of the Act is discretionary and the Court can not ordinarily annul the decree once passed by it. Although the power to annul the decree exists yet Section 28 of the Act provides for complete relief to both the parties in terms of the decree. The Court does not cease to have the power to extend the time even though the trial Court had earlier directed in the decree that payment of balance price to be made by certain date and on failure suit to stand dismissed. The power exercisable under this Section is discretionary. 11. As rightly contended by learned counsel for the respondents the stand now taken was not pleaded before the trial Court and the High Court. The decision in Kumar Dhirendra's case (Supra) is clearly distinguishable on facts. In fact, it has been noted in that case that the decree-holder was repeatedly assured of payment. The situation is not the same here. The only stand taken was that there was no direction to pay within a particular time. This plea is clearly unsustainable and untenable and has been rightly rejected. 11. In view of the above stated facts and circumstances, and looking to the relevant provision of law and case law referred above there is no substance and merit in the writ petition filed by the petitioners and the same is deserves to be dismissed. 12. Accordingly, this writ petition stands dismissed.