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2014 DIGILAW 623 (ORI)

Dilip Kumar Patro v. M. Gopikrishna Rao

2014-09-24

KUMARI SANJU PANDA

body2014
ORDER : This Writ Petition has been filed by the petitioner challenging the order dated 26-6-2006 passed by the learned Civil Judge (Senior Division), Berhampur in T.S. No. 128 of 1997 rejecting the application under Section 28 (1) of the Specific Relief Act, 1963 for rescission of the contract dated 21-8-1995 as the opposite party did not comply with the judgment and decree passed by the court below and committed default in depositing the balance consideration within the stipulated time. 2. The facts leading to the present case are that there was an agreement between the petitioner and opposite party on 21-8-1995 wherein the petitioner was agreed to sell the disputed property measuring Ac. 0.44 cents for Rs. 2,17,844/- to the opposite party and to execute the Sale Deed within a period of seventeen months from the date of agreement. Accordingly, the opposite party paid a sum of Rs. 35,001/- to the petitioner towards advance consideration. As the petitioner did not excute the Sale Deed, the opposite party as plaintiff filed T.S No. 128 of 1997 before the learned Civil Judge (Senior Division), Berhampur for specific performance of contract. The petitioner who is defendant appeared in the suit and filed his written statement stating that he is ready and willing to perform his contract and the opposite party be directed to deposit the entire balance consideration amount with interest in court. 3. The court below taking into consideration the materials available on record and the evidence adduced by the parties decreed the suit on 7-4-2001 directing the petitioner to execute the Sale Deed in favour of the opposite party within one month of the decree and the opposite party to pay the balance consideration amount of the agreed value within the said period failing which the opposite party would be at liberty to get the Sale Deed executed and registered through courts. The petitioner did not execute the Sale Deed as per the decree, however, he has given a false notice to the opposite party stating that on 28-5-2001 he will execute the Sale Deed. On receiving the notice the opposite party had been to the office of Sub-Registar along with the balance consideration money. However, the petitioner expressed his inability to execute the Sale Deed for the whole lands on the plea that he had already sold 8800 sq. ft. out of the schedule property to somebody else. On receiving the notice the opposite party had been to the office of Sub-Registar along with the balance consideration money. However, the petitioner expressed his inability to execute the Sale Deed for the whole lands on the plea that he had already sold 8800 sq. ft. out of the schedule property to somebody else. The opposite party in order to show his bona fide deposited the entire balance consideration amount in Bank. Thereafter the petitioner filed an application before the court below under Order 47, Rule 1 of C.P.C. to modify the judgment and decree on the ground that the extent of land as agreed was not as per schedule and the extent to be reduced. The said application was registered as M.J.C. No. 91 of 2001. The opposite party filed his objection to the said application stating that in order to delay the proceeding the application has been filed. The opposite party also filed Execution Case No. 38 of 2001 to get the decree executed. The petitioner filed an application under S. 47 of C.P.C. questioning the executability of the decree. Thereafter the petitioner filed an application under Section 28 (1) of the Specific Relief Act, 1963 (hereinafter referred to as ' the Act) to rescind the contract. The court below after hearing the parties came to the conclusion that there are no reasons to hold the decree ineffective merely because the amount was not deposited within the stipulated period. The court is competent under Section 28 of the Act to grant extension of time to deposit the purchased price even if the period fixed by the court has been expired and without any application for extension. Section 48 of C.P.C. also empowers the court to extend the time even if the period has already been expired. Accordingly, the court below by the impugned order rejected the application and directed the opposite party to deposit the balance amount within a period of one month from the date of the order and the petitioner is to execute the Sale Deed in view of the judgment and decree passed in the suit. 4. Accordingly, the court below by the impugned order rejected the application and directed the opposite party to deposit the balance amount within a period of one month from the date of the order and the petitioner is to execute the Sale Deed in view of the judgment and decree passed in the suit. 4. Initially the petitioner challenging the impugned order has filed C.R.P. No. 32 of 2006, which was disposed of by this Court by judgment dated 31-8-2007 with an observation that revision is not maintainable in view of provision of Section 115 (1) of C.P.C. and accordingly the revision was converted to an application under Article 227 of the Constitution of India. Therefore, the matter is heard again. 5. Learned counsel appearing for the petitioner submitted that time is the essence of the contract and as the opposite party has not deposited the balance consideration amount within the stipulated time, the petitioner moved an application under Section 28 (1) of the Act, which should have been allowed by the court below instead of extending the time. Hence the impugned order need be interfered with. 6. Learned counsel appearing for opposite party submitted that the opposite party has given intimation to the Judgment Debtor to execute the Sale Deed on a particular date and pursuant to the said notice the opposite party was present before the office of Sub-Registrar for execution of Sale Deed on payment of the balance consideration amount. However, the Judgment Debtor did not turn up and failed to execute the Sale Deed, therefore, the Decree Holder compelled to open a Pass Book at Rushikulya Gramya Bank, Berhampur and deposited the balance consideration amount to show his bona fide. He further submitted that the Decree Holder is always ready and willing to purchase the suit land and he has not made any default in compliance of the Courts order. He also submitted that the suit for specific performance of contract was decreed as the Judgment Debtor is a defaulting party and the court below rightly rejected his application and allowed the Decree Holder to deposit the money in the Court execution of the Sale Deed. Hence, the impugned order need not be interfered with. 7. He also submitted that the suit for specific performance of contract was decreed as the Judgment Debtor is a defaulting party and the court below rightly rejected his application and allowed the Decree Holder to deposit the money in the Court execution of the Sale Deed. Hence, the impugned order need not be interfered with. 7. Considering the rival submission of the parties and after going through the materials available on record, it appears that the plaintiff had taken steps to comply the judgment and decree, however, the Judgment Debtor in spite of complying his part of performance filed the application to rescind the contract. The Decree Holder in order to show his bona fide has deposited the balance consideration amount in Bank to purchase the property. Since the Decree Holder has deposited the balance consideration amount in Bank, the court below inclined to extend the time and passed the impugned order rejecting the application of the petitioner to rescind the contract. 8. The Apex Court in the case of Sardar Mohar Singh through Power of Attorney Holder, Manjit Singh v. Mangilal alias Mangtya reported in (1997) 9 SCC 217 held that the Court does not lose its jurisdiction after grant of decree for specific performance nor it becomes functus officio in view of the provision of Section 28 (1) of the Act. The very fact that Section 28 of the Act itself gives power to grant order of rescission of the decree would indicate that till the sale deed is executed in execution of the decree, the trial court retains its power and jurisdiction to deal with the decree of specific performance. The court has power to enlarge the time in favour of the judgment debtor to pay the amount or to perform the conditions mentioned in the decree for specific performance, in spite of an application for rescission of the decree having been filed by the judgment debtor and rejected. The court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. 9. In view of the aforesaid settled position of law, the court below has rightly extended the time, which is within its jurisdiction. The court has the discretion to extend time for compliance of the conditional decree as mentioned in the decree for specific performance. 9. In view of the aforesaid settled position of law, the court below has rightly extended the time, which is within its jurisdiction. As there is no error apparent on the face of the record, this Court is not inclined to interfere with the impugned order dated 26-6-2006 passed by the learned Civil Judge (Senior Division), Berhampur in T.S. No. 128 of 1997 in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, this writ petition is dismissed. The interim order dated 31-8-2006 passed by this Court in Misc. Case No. 45 of 2006 stands vacated. Petition dismissed.