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2015 DIGILAW 383 (JHR)

Most. Parwati Devi v. Mahabir Mahto

2015-03-19

SHREE CHANDRASHEKHAR

body2015
Order : Aggrieved by orders dated 08.01.2010 and 19.07.2010 in Execution Case No. 6 of 2006, the present writ petition has been filed. The plaintiff who is respondent in the writ petition filed Title Suit No. 91 of 1977, seeking a decree of specific performance of agreement dated 24.05.1968, which was decreed on 25.11.1978. The plaintiff was directed to deposit Rs. 1,500/- within 30 days and the defendant was directed to execute saledeed, within 60 days from the date of judgment. It is stated that the plaintiff did not deposit the amount of Rs. 1500/- within 30 days in terms of judgment and order dated 25.11.1978 and therefore, application dated 01.01.1979 was filed by the plaintiff seeking extension of time for depositing Rs. 1500/- however, the said application was dismissed on the same day, declining extension of time for depositing the said amount. The defendant who is petitioner herein preferred Title Appeal No. 10 of 1979 challenging judgment dated 25.11.1978 which was dismissed however, the second appeal preferred by the defendant being, S.A. No. 74 of 1984 was allowed by this Court vide order dated 11.05.1999 and thus, Title Suit No. 91 of 1977 stood dismissed. Challenging the order passed in second appeal, the plaintiff approached the Hon'ble Supreme Court by filing Special Leave Petition which was converted into Civil Appeal No. 1514 of 2000. The Civil Appeal preferred by the plaintiff was allowed on 11.01.2006 and thus, the orders passed in Title Suit No. 91 of 1977 and Title Appeal No. 10 of 1979 were restored. Thereafter, the plaintiff filed Execution Case No. 6 of 2006 in which an enquiry was made as to deposit of Rs. 1500/- on 09.12.1978, as claimed by the plaintiff and a report was received from the Treasury which indicates that no such deposit was made on 19.12.1978. However, vide letter dated 08.01.2010, the trial court ordered the plaintiff to deposit a sum of Rs. 1500/- and vide order dated 19.07.2010 the plaintiff was directed to submit proforma of saledeed. 2. Mr. Rajeev Ranjan Tiwary, the learned counsel appearing for the petitioner submits that, admittedly, in compliance of order in T.S. No. 91/1977 the plaintiff did not deposit Rs. 1500/- and vide order dated 19.07.2010 the plaintiff was directed to submit proforma of saledeed. 2. Mr. Rajeev Ranjan Tiwary, the learned counsel appearing for the petitioner submits that, admittedly, in compliance of order in T.S. No. 91/1977 the plaintiff did not deposit Rs. 1500/- within 30 days and he filed application dated 01.01.1979 seeking extension of time for depositing the said amount however, the prayer of the plaintiff was declined by the trial court and thus, in term of the decree in T.S. No. 91/1977 which enjoins the plaintiff to deposit a sum of Rs. 1500/- within 30 days, the plaintiff did not comply the said order. Therefore, the defendant was not obliged to execute the saledeed. In such view of the matter, the decree which is in two parts cannot be executed due to nonperformance of his part by the plaintiff still, the trial court permitted the plaintiff to deposit a sum of Rs. 1500/- which would amount to modifying the decree. It is submitted that order dated 01.01.1979 refusing extension of time was not challenged by the plaintiff and thus, the said order could not have been reviewed by the trial court by permitting the plaintiff to deposit a sum of Rs. 1500/-. It is further submitted that before the Hon'ble Supreme Court a plea was taken by the plaintiff that he deposited a sum of Rs. 1500/- on 19.12.1978 however, the proceeding in Execution Case No. 6 of 2006 clearly discloses that no such amount was deposited in the Treasury and thus, fraud was played upon the court by the plaintiff. The learned counsel for the petitioner relies on a decision of the Hon'ble Supreme Court in “Meghmala and others vs. G. Narasimha Reddy and others”, reported in (2010) 8 SCC 383 to contend that an order obtained by playing fraud upon the court is liable to be interfered by the Court. 3. As against the above, the learned counsel for the respondent submits that, before the Hon'ble Supreme Court, a copy of challan dated 19.12.1978 was filed as Annexure5 to the Special Leave Petition. The defendant-plaintiff appeared and filed counter-affidavit and, the Hon'ble Supreme Court after considering the materials on record, interfered with order passed in S.A. No. 23 of 1994 and therefore, the plea raised by the petitioner that an amount of Rs. 1500/- was not deposited by the petitioner, is unfounded. The defendant-plaintiff appeared and filed counter-affidavit and, the Hon'ble Supreme Court after considering the materials on record, interfered with order passed in S.A. No. 23 of 1994 and therefore, the plea raised by the petitioner that an amount of Rs. 1500/- was not deposited by the petitioner, is unfounded. Moreover, the Hon'ble Supreme Court has noticed that no such plea was raised by the judgment debtor before the Appellate Court and thus, the petitioner cannot raise a plea of fraud at this stage. 4. Having considered the submissions of the learned counsel for the parties and after perusing the documents on record, I am of the opinion that the writ petition lacks merits for the reasons discussed, hereinafter. From the pleadings on record, it appears that the order passed in Title Suit No. 91 of 1977 and Title Appeal No. 10 of 1979 were set-aside in S.A. No. 23 of 1994 on the ground that the plaintiff failed to aver and demonstrate that he was ready and willing to perform his part of the agreement. Another ground taken by this Court for interfering with the orders passed by the courts below was that since the plaintiff has failed to deposit a sum of Rs. 1500/- as ordered in Title Suit No. 91 of 1977, the plaintiff has failed to establish that he has the capacity to perform his part of the agreement. The said findings have been found by the Hon'ble Supreme Court unfounded in Civil Appeal No. 1514 of 2000. Referring to the contention that the plaintiff failed to deposit a sum of Rs. 1500/- within 30 days and thus, the decree cannot be executed, I find that the Hon'ble Supreme Court has taken note of this fact and it has been found by the Hon'ble Supreme Court that a sum of Rs. 1500/was deposited on 19.12.1978. The learned counsel for the respondent has submitted that a copy of challan dated 19.12.1978 was filed as Annexure5 to the Special Leave petition. The Hon'ble Supreme Court has recorded a finding that, “on perusal of the records, it appears that the deposit was made on 19.12.1978, that was well within one month time granted by the trial court by its judgment and decree dated 25.11.1978. Confusion appears to have arisen because notwithstanding the deposit, an application for extension of time was filed. The Hon'ble Supreme Court has recorded a finding that, “on perusal of the records, it appears that the deposit was made on 19.12.1978, that was well within one month time granted by the trial court by its judgment and decree dated 25.11.1978. Confusion appears to have arisen because notwithstanding the deposit, an application for extension of time was filed. The High Court should have ignored the application and should not have put any emphasis thereon as verification of the record would have revealed that the payment had been made”. It is not disputed by the learned counsel for the petitioner that the trial court has power and jurisdiction to grant extension of time for depositing the decreetal amount. 5. Section 28 of the Specific Relief Act provides that the Court which has passed the order, has power and jurisdiction to extend the time granted for depositing the amount and, it is well settled that the Trial Court does not loose its control over the subject matter till the decree is executed. In “Shivshankar Gurgar vs. Dilip”, reported in (2014) 2 SCC 465, it has been held that if the timelimit is fixed by the order of the court, the court has power to extend the same however, in cases where timelimit is fixed by agreement of the parties, the court executing the decree would have no power to extend the timelimit fixed by the parties. In the present case, the trial court vide order dated 25.11.1978 in Title Suit No. 19/1997 directed the decree holder to deposit a sum of Rs. 1,500/-, within 30 days. The decree was prepared on 02.12.1978 and it was signed and sealed on 07.12.1978. The decree holder filed an application on 01.01.1979 seeking extension of time for depositing Rs. 1,500/- which was dismissed by the trial court on the same day. The Hon'ble Supreme Court has found that the decree holder had deposited Rs. 1,500/- on 19.12.1978 and a copy of the challan by which the amount of Rs. 1,500/was deposited by the decree holder was produced before the Hon'ble Supreme Court. The petitioner herein filed her counter-affidavit in the proceeding of Civil Appeal No. 1514 of 2000 disputing the claim of the decree holder. 1,500/- on 19.12.1978 and a copy of the challan by which the amount of Rs. 1,500/was deposited by the decree holder was produced before the Hon'ble Supreme Court. The petitioner herein filed her counter-affidavit in the proceeding of Civil Appeal No. 1514 of 2000 disputing the claim of the decree holder. The objection raised by the petitioner judgment debtor has been rejected by the Hon'ble Supreme Court and thus, there is no difficulty in accepting the contention of the learned counsel for the respondent-decree holder that order dated 01.01.1979 declining to extend the time on the application filed by the decree holder, was erroneous. Moreover, the decree was signed and sealed on 07.12.1978 and thus, the decree holder had time till 05.01.1979 however, the application dated 01.01.1979 was dismissed on the same day. I find no substance in the contention that the Trial Court has reviewed order dated 01.01.1979. 6. From the impugned orders dated 08.01.2010 and 19.07.2010, it appears that the petitioner has raised a plea that the decree holder played fraud on the court in as much as, report dated 23.12.2009 of the Treasury, Hazaribagh discloses that the decree holder did not deposit such amount in the Treasury. This contention raised on behalf of the petitioner is liable to be rejected. A copy of challan evidencing deposit of Rs. 1,500/- on 19.12.1978 was produced on the record before the Hon'ble Supreme Court. In the report from the Treasury vide letter dated 23.12.2009, the genuineness of the said challan has not been doubted. It further appears that the petitioner has not filed an application seeking verification of genuineness of the challan dated 19.12.1978. It also cannot be said that the trial court has extended the time for deposit of Rs. 1,500/-, 35 years after the order in Title Suit No. 91 of 1977 was passed. After the report from the Treasury was received on 19.12.2009, the trial court directed the decree holder on 08.01.2010 to deposit Rs. 1,500/- in favour of the judgment-debtor. Since the judgment-debtor is directed to execute sale deed after receiving Rs. 1,500/-, the trial court could not have ordered execution of saledeed by the judgment-debtor without payment of the said amount to her. 7. It is well settled that a plea of fraud has to be set up as an independent plea with specific averment and proof thereof, in support of such a plea. 1,500/-, the trial court could not have ordered execution of saledeed by the judgment-debtor without payment of the said amount to her. 7. It is well settled that a plea of fraud has to be set up as an independent plea with specific averment and proof thereof, in support of such a plea. The plea of fraud is like any other plea and it is a question of fact whether a fraud has been played or not by a party to a suit. Merely because a report has been received from the treasury that the amount of Rs. 1500/- was not deposited, an inference cannot be drawn that a fraud was played by the plaintiff on the court and order dated 17.01.2006 was obtained in Civil Appeal No. 1514 of 2000 by playing fraud. From the order in Civil Appeal No. 154 of 2000 as noticed above, it appears that the plea as sought to be raised before this Court that no deposit was made on 19.12.1978, was found an error of record by the Hon'ble Supreme Court. The learned counsel for the petitioner submits that the defendant has already filed an application under Section 47 C.P.C. raising a plea that fraud has been played by the plaintiff and no order has been passed in the said application still, the trial court has permitted the plaintiff to deposit a sum of Rs. 1500/-. From orders dated 08.01.2010 and 19.07.2010 and the proceeding in Execution Case No. 06 of 2006, it does not appear that the defendant took a plea that during the pendency of application under Section 47 C.P.C., the execution of the decree should stayed. 8. Considering the above facts, I find no merit and accordingly, the writ petition is dismissed however, without costs.