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2014 DIGILAW 2699 (ALL)

Dal Chand v. Pradeep Kumar

2014-09-02

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya,J.: - Supplementary affidavit filed today is taken on record. 2. By means of this writ petition, the petitioner has challenged the order of the executing court in execution case No.11 of 2003 by which his application under section 28 of the Specific Relief Act stating that the execution cannot proceed as the agreement stood rescinded on account of non-compliance on the part of the plaintiff as directed in the decree was rejected against which a revision was filed and the revision has also been dismissed. 3. On 15.3.1984, Dal Chand, the petitioner, executed a registered agreement to sell. He failed to execute the sale deed in favour of respondents No.1 and 2. But in the meantime he transferred the land in dispute to respondents No.3,4 and 5 which necessitated the respondents No.1 and 2 to file a suit being suit No.238 of 1990 claiming a decree of specific performance of contract pursuant to the agreement to sell dated 15.3.1984. The said suit after contest was decreed vide judgment and decree dated 25.5.1993 in favour of the respondents No.1 and 2. It is relevant to note that in the said suit besides respondents No.2 and 3, Suresh Chand, Dev Karan and Rakesh Kumar were also made parties who were the vendee pursuant to the sale deed executed by the petitioner. In the judgment it has been held that the subsequent purchaser are not bona fide purchaser. The decree so far as subsequent purchaser is concerned has attained finality as they have not filed any appeal. It it is only the petitioner who filed an appeal being civil appeal No.57 of 1995. The said appeal was dismissed for non-prosecution on a number of occasion but all the orders dismissing the appeal in default were recalled by the orders dated 11.3.2010, 20.3.2010, 26.3.2010 and 2.7.2010. These orders were challenged by respondents No.1 and 2 by filing a writ petition being writ petition No.49669 of 2010. This Court vide its order dated 1.9.2010 stayed the order of the appellate court restoring the appeal. The said stay order of this Court was subject matter of appeal before the Supreme Court being Appeal No.9796 of 2011. It appears that during this period, respondents No.1 and 2 had filed an execution case being execution case o.11 of 2003 which was being pressed by them. The said stay order of this Court was subject matter of appeal before the Supreme Court being Appeal No.9796 of 2011. It appears that during this period, respondents No.1 and 2 had filed an execution case being execution case o.11 of 2003 which was being pressed by them. However, the Supreme Court vide its order dated 14.11.2011 directed the High Court to decide the writ petition within a period of six months and for a period of six months, the execution proceedings were stayed by the Supreme Court and the said appeal was thus disposed of. The writ petition, however, was ultimately allowed vide order dated 14.2.2012. After allowing of the writ petition No.49669 of 2010 vide order dated 14.2.2012, the respondents No.1 and 2 filed another writ petition before this Court being writ petition No.474 of 2013 for early disposal of the execution case No.11 of 2003. By the order dated 27.2.2013, this Court directed the executing court to conclude the proceedings within a period of six months. It appears that the petitioner then filed the aforesaid application under section 28 of the Specific Relief Act that the execution proceedings cannot continue as the respondents have not complied with the condition of the decree. The decree was to the effect that the defendant petitioner will obtain permission from the prescribed authority as provided under section 157-A of the U.P. Zamindari Abolition and Land Reforms Act and after receiving the balance amount from the decree holder will execute the sale deed failing which the decree holder would be at liberty to get the sale deed executed through court. 4. Learned counsel for the petitioner submits that as per decree the sale deed was to be executed within a period of two months upon payment of the balance amount. The amount was not tendered by the respondents within the time allowed, as such in view of section 28 of the Specific Relief Act, the execution cannot proceed and the agreement to sell ought to be rescinded. Learned counsel for the petitioner has relied upon a decision of Hon'ble Supreme Court in the case of Chanda (Dead) through Lrs. Vs. The amount was not tendered by the respondents within the time allowed, as such in view of section 28 of the Specific Relief Act, the execution cannot proceed and the agreement to sell ought to be rescinded. Learned counsel for the petitioner has relied upon a decision of Hon'ble Supreme Court in the case of Chanda (Dead) through Lrs. Vs. Rattni and another 2007 Vol.14 SCC 26 wherein the Supreme Court has held that in a suit for specific performance where the execution of sale deed has been directed, if the plaintiff does not deposit the amount with the time prescribed in the judgment and decree, section 28 of the Specific Relief Act will come into play. The decree before the Supreme Court is quoted herein below: "For the reasons discussed above, the suit succeeds. A decree for possession of the suit land by way of specific performance is hereby passed in favour of the plaintiff and against the defendants with costs. The defendants are directed to execute the proposed sale deed on payment of the balance sale price of Rs.1,39,000 and get it registered within a period of two months from the date of this decree, failing which the plaintiff shall be at liberty to get the sale deed executed and registered under Order 21 Rule 12 of the Code. Decree be drawn up accordingly and file be consigned to the record room." 5. In the aforesaid decree the direction was that the balance amount was required to be deposited by the plaintiff within a period of two months. The said amount was not deposited within the time prescribed and no permission was sought for extension of time, as such the Supreme Court held that the decree cannot be executed in view of section 28 of the Specific Relief Act. But in the present case the said judgment would not be applicable as a specific direction was given to the petitioner defendant to get the permission under section 157-A of the U.P. Zamindari Abolition and Land Reforms Act from the Prescribed Authority which permission till date has not been sought , as such the condition precedent for payment of the balance amount was after the judgment debtor obtains the permission from the prescribed authority under section 157-A of the Act. This condition was not complied with. This condition was not complied with. That having not been done, the time limit of two months for payment of the balance amount will not apply in the present case. 6. Learned counsel for the petitioner has then relied upon another judgment of Hon'ble Supreme Court in the case of V.S.Palanichamy Chettiar Firm Vs. C.Alagappan and another 1999 (4) SCC 702 . The said decision is also similar to the decision aforesaid. In para 10 it was held that no application having been filed by the decree holder for seeking extension of time for deposit of the balance amount under the decree, the provisions of section 28 of the Specific Relief Act would come into play. As stated above, the said decision will also not be applicable in the same terms as the condition precedent was that the petitioner will get the permission from the Prescribed Authority under section 157-A of the U.P.Zamindar Abolition and Land Reforms Act which having not been done, the said decision will also not be applicable to the petitioner. 7. Learned counsel for the petitioner then relied upon another decision of Hon'ble Supreme Court in the case of Vishwa Nath Sharma Vs. Shyam Shanker Goela and another (2007) 10 SCC 595 by which it has been held that for grant of decree of specific performance, it is not dependent upon the permission by any authority . In the present case, it is not the case that the decree is dependent upon permission of the Prescribed Authority as a specific issue No.7 has been framed with regard to the aforesaid and has been decided against the defendant. The Supreme Court in the aforesaid decision in para 12 has held that if the Chief Commissioner ultimately refused to grant the sanction to the sale, plaintiff will not be able to enforce the decree of specific performance of contract but that was not a bar upon the court passing a decree for that relief. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale, the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. If after the grant of the decree of specific performance of the contract, the Land and Development Officer refused to grant permission for sale, the decree holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. The question in the present case is not that the court is bound by the condition precedent , that is, obtaining permission by the Prescribed Authority under section 157-A of the U.P.Zamindari Abolition and Land Reforms Act. The decree has been passed with the condition that the petitioner after permission from the Prescribed Authority would execute the sale deed after receipt of the balance amount, as such the said decision is not applicable on the facts of the present case. 8. It is not disputed that till date permission has not even been sought by the petitioner as directed in the judgment and decree dated 25.5.1993. On the other hand, the plaintiff respondents No.1 and 2 have already tendered the balance amount on 2.3.2005, as such it cannot be said that the respondents have not complied the direction in the decree whereas the petitioners have clearly not complied with the direction of the courts below for obtaining permission under section 157-A of the U.P.Zamindari Abolition and Land Reforms Act. 9. In view of the discussion above, I am not inclined to interfere with the orders of the executing court as well as the revisional court and it is further directed that the execution be proceeded and the decree be satisfied without granting adjournment to either of the parties. 10. The writ petition is accordingly dismissed.